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1973_73-557

BRENNAN, J., filed an opinion concurring in the result, in which STEWART and MARSHALL, JJ., joined, post, p. 418 U. S. 162.MR. JUSTICE REHNQUIST delivered the opinion of the Court.Appellant was convicted in Georgia of the crime of distributing obscene material. His conviction, in March, 1972, was for showing the film "Carnal Knowledge" in a movie theater in Albany, Georgia. The jury that found appellant guilty was instructed on obscenity pursuant to the Georgia statute, which defines obscene material in language similar to that of the definition of obscenity set forth in this Court's plurality opinion in Memoirs v. Massachusetts, 383 U. S. 413, 383 U. S. 418 (1966):"Material is obscene if, considered as a whole, applying community standards, its predominant appeal is to prurient interest, that is, a shameful or morbid Page 418 U. S. 155 interest in nudity, sex or excretion, and utterly without redeeming social value, and if, in addition, it goes substantially beyond customary limits of candor in describing or representing such matters."Ga.Code Ann. § 22101(b) (1972). [Footnote 1]We hold today in Hamlin v. United States, ante, p. 418 U. S. 87, that defendants convicted prior to the announcement of our Miller decisions but whose convictions were on direct appeal at that time should receive any benefit available to them from those decisions. We conclude here that the film "Carnal Knowledge" is not obscene under the constitutional standards announced in Miller v. California, 413 U. S. 15 (1973), and that the First and Fourteenth Amendments therefore require that the judgment of the Supreme Court of Georgia affirming appellant's conviction be reversed.Appellant was the manager of the theater in which "Carnal Knowledge" was being shown. While he was exhibiting the film on January 13, 1972, local law enforcement officers seized it pursuant to a search warrant. Appellant was later charged by accusation, Ga.Code Ann. § 27-704 (1972), with the offense of distributing obscene material. [Footnote 2] After his trial in the Superior Court of Dougherty Page 418 U. S. 156 County, the jury, having seen the film and heard testimony, returned a general verdict of guilty on March 23, 1972. [Footnote 3] Appellant was fined $750 and sentenced to 12 months' probation. He appealed to the Supreme Court of Georgia, which, by a divided vote, affirmed the judgment of conviction on July 2, 1973. That court stated that the definition of obscenity contained in the Georgia statute was "considerably more restrictive" than the new test set forth in the recent case of Miller v. California, supra, and that the First Amendment does not protect the commercial exhibition of "hard core" pornography. The dissenting Justices, in addition to other disagreements with the court, thought that "Carnal Knowledge" was entitled to the protection of the First and Fourteenth Amendments. Appellant then appealed Page 418 U. S. 157 to this Court, and we noted probable jurisdiction, 414 U.S. 1090 (1973).We agree with the Supreme Court of Georgia's implicit ruling that the Constitution does not require that juries be instructed in state obscenity cases to apply the standards of a hypothetical state-wide community. Miller approved the use of such instructions; it did not mandate their use. What Miller makes clear is that state juries need not be instructed to apply "national standards." We also agree with the Supreme Court of Georgia's implicit approval of the trial court's instructions directing jurors to apply "community standards" without specifying what "community." Miller held that it was constitutionally permissible to permit juries to rely on the understanding of the community from which they came as to contemporary community standards, and the States have considerable latitude in framing statutes under this element of the Miller decision. A State may choose to define an obscenity offense in terms of "contemporary community standards" as defined in Miller without further specification, as was done here, or it may choose to define the standards in more precise geographic terms, as was done by California in Miller.We now turn to the question of whether appellant's exhibition of the film was protected by the First and Fourteenth Amendments, a question which appellee asserts is not properly before us because appellant did not raise it on his state appeal But whether or not appellant argued this constitutional issue below, it is clear that the Supreme Court of Georgia reached and decided it. That is sufficient under our practice. Raley v. Ohio, 360 U. S. 423, 360 U. S. 436 (1959). We also note that the trial court instructed the jury on charges other than the distribution charge. [Footnote 4] However, the jury returned a general verdict Page 418 U. S. 158 and appellee does not suggest that appellant's conviction can be sustained on these alternative grounds. Cf. Stromberg v. California, 283 U. S. 359, 283 U. S. 367-368 (1931).There is little to be found in the record about the film "Carnal Knowledge" other than the film itself. [Footnote 5] However, appellant has supplied a variety of information and critical commentary, the authenticity of which appellee does not dispute. The film appeared on many "Ten Best" lists for 1971, the year in which it was released. Many but not all of the reviews were favorable. We believe that the following passage from a review which appeared in the Saturday Review is a reasonably accurate description of the film:"[It is basically a story] of two young college men, roommates and lifelong friends forever preoccupied with their sex lives. Both are first met as virgins. Nicholson is the more knowledgeable and attractive of the two; speaking colloquially, he is a burgeoning bastard. Art Garfunkel is his friend, the nice but troubled guy straight out of those early Feiffer cartoons, but real. He falls in love with the lovely Susan (Candice Bergen) and unknowingly shares her with his college buddy. As the 'safer' one of the two, he is selected by Susan for marriage.""The time changes. Both men are in their thirties, pursuing successful careers in New York. Nicholson has been running through an average of a dozen women a year, but has never managed to meet the right one, the one with the full bosom, the good legs, Page 418 U. S. 159 the properly rounded bottom. More than that, each and every one is a threat to his malehood and peace of mind, until at last, in a bar, he finds Ann-Margret, an aging bachelor girl with striking cleavage and, quite obviously, something of a past. 'Why don't we shack up?' she suggests. They do, and a horrendous relationship ensues, complicated mainly by her paranoidal desire to marry. Meanwhile, what of Garfunkel? The sparks have gone out of his marriage, the sex has lost its savor, and Garfunkel tries once more. And later, even more foolishly, again. [Footnote 6]"Appellee contends essentially that, under Miller, the obscenity vel non of the film "Carnal Knowledge" was a question for the jury, and that the jury having resolved the question against appellant, and there being some evidence to support its findings, the judgment of conviction should be affirmed. We turn to the language of Miller to evaluate appellee's contention.Miller states that the questions of what appeals to the "prurient interest" and what is "patently offensive" under the obscenity test which it formulates are "essentially questions of fact." 413 U.S. at 413 U. S. 30."When triers of fact are asked to decide whether 'the average person, applying contemporary community standards' would consider certain materials 'prurient,' it would be unrealistic to require that the answer be based on some abstract formulation. . . . To require a State to structure obscenity proceedings around evidence of a national 'community standard' would be an exercise in futility."Ibid. We held in Paris Adult Theatre I v. Slaton, 413 U. S. 49 (1973), decided on the same day, that expert testimony Page 418 U. S. 160 as to obscenity is not necessary when the films at issue are themselves placed in evidence. Id. at 413 U. S. 56.But all of this does not lead us to agree with the Supreme Court of Georgia's apparent conclusion that the jury's verdict against appellant virtually precluded all further appellate review of appellant's assertion that his exhibition of the film was protected by the First and Fourteenth Amendments. Even though questions of appeal to the "prurient interest" or of patent offensiveness are "essentially questions of fact," it would be a serious misreading of Miller to conclude that juries have unbridled discretion in determining what is "patently offensive." Not only did we there say that"the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary,"413 U.S. at 413 U. S. 25, but we made it plain that, under that holding,"no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive 'hard core' sexual conduct. . . ."Id. at 413 U. S. 27.We also took pains in Miller to "give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced," that is, the requirement of patent offensiveness. Id. at 413 U. S. 25. These examples included "representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated," and "representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals." Ibid. While this did not purport to be an exhaustive catalog of what juries might find patently offensive, it was certainly intended to fix substantive constitutional limitations, deriving from the First Amendment, on the type of material subject to such a Page 418 U. S. 161 determination. It would be wholly at odds with this aspect of Miller to uphold an obscenity conviction based upon a defendant's depiction of a woman with a bare midriff, even though a properly charged jury unanimously agreed on a verdict of guilty.Our own viewing of the film satisfies us that "Carnal Knowledge" could not be found under the Miller standards to depict sexual conduct in a patently offensive way. Nothing in the movie falls within either of the two examples given in Miller of material which may constitutionally be found to meet the "patently offensive" element of those standards, nor is there anything sufficiently similar to such material to justify similar treatment. While the subject matter of the picture is, in a broader sense, sex, and there are scenes in which sexual conduct including "ultimate sexual acts" is to be understood to be taking place, the camera does not focus on the bodies of the actors at such times. There is no exhibition whatever of the actors' genitals, lewd or otherwise, during these scenes. There are occasional scenes of nudity, but nudity alone is not enough to make material legally obscene under the Miller standards.Appellant's showing of the film "Carnal Knowledge" is simply not the "public portrayal of hard core sexual conduct for its own sake, and for the ensuing commercial gain" which we said was punishable in Miller. Id. at 413 U. S. 35. We hold that the film could not, as a matter of constitutional law, be found to depict sexual conduct in a patently offensive way, and that it is therefore not outside the protection of the First and Fourteenth Amendments because it is obscene. No other basis appearing in the record upon which the judgment of conviction can be sustained, we reverse the judgment of the Supreme Court of Georgia.Reversed

U.S. Supreme CourtJenkins v. Georgia, 418 U.S. 153 (1974)Jenkins v. GeorgiaNo. 73-557Argued April 15, 1974Decided June 24, 1974418 U.S. 153SyllabusAppellant was convicted, prior to the announcement of Miller v. California, 413 U. S. 15, and companion cases, of violating Georgia's obscenity statute for showing the film "Carnal Knowledge" in a motion picture theater. The jury had been instructed on obscenity under that statute, which defines obscene material in terms similar to the definition in Memoirs v. Massachusetts, 383 U. S. 413, 383 U. S. 418. The Georgia Supreme Court affirmed.Held:1. Appellant, whose conviction was on appeal at the time of the announcement of Miller, is entitled to any benefit available thereunder. Hamling v. United States, ante, p. 418 U. S. 87. P. 418 U. S. 155.2. There is no constitutional requirement that juries be instructed in state obscenity cases to apply the standards of a hypothetical state-wide community -- Miller approving, but not mandating, such an instruction -- and jurors may properly be instructed to apply "community standards," without a specification of the "community" by the trial court. P. 418 U. S. 157.3. The film is not obscene under the constitutional standards announced in Miller, and appellant's conviction therefore contravened the First and Fourteenth Amendments. Pp. 418 U. S. 157-161.(a) Juries do not have unbridled discretion in determining what is "patently offensive," since"no one will be subject to prosecution for the sale or exposure of obscene materials [that do not] depict or describe patently offensive 'hard core' sexual conduct.',' . . . ."Miller, supra, at 413 U. S. 27. Pp. 418 U. S. 160-161.(b) This Court's own view of the film impels the conclusion that the film's depiction of sexual conduct is not patently offensive. The camera does not focus on the bodies of actors during scenes of "ultimate sexual acts," nor are the actors' genitals exhibited during those scenes. The film shows occasional nudity, but nudity alone does not render material obscene under Miller's standards. P. 418 U. S. 161.230 Ga. 726, 199 S.E.2d 183, reversed.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, and POWELL, JJ., joined. Page 418 U. S. 154 DOUGLAS, J., filed a statement concurring in the result, post, p. 418 U. S. 162. BRENNAN, J., filed an opinion concurring in the result, in which STEWART and MARSHALL, JJ., joined, post, p. 418 U. S. 162.

2000_00-276

Because the Government did not raise in the Sixth Circuit its theory that this case is permissible government speech, this Court will not entertain that argument here. Pp.411-417.197 F.3d 221, affirmed.KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and STEVENS, SCALIA, SOUTER, and THOMAS, JJ., joined. STEVENS, J., post, p. 417, and THOMAS, J., post, p. 418, filed concurring opinions. BREYER, J., filed a dissenting opinion, in which GINSBURG, J., joined, and in which O'CONNOR, J., joined as to Parts I and III, post, p. 419.Barbara McDowell argued the cause for the United States. With her on the brief were Acting Solicitor General Underwood, Acting Assistant Attorney General Schiffer, Deputy Solicitor General Kneedler, and Douglas N. Letter.Laurence H. Tribe argued the cause for respondent.With him on the brief were Thomas C. Goldstein and Bradley A. MacLean. **Briefs of amici curiae urging reversal were filed for the State of California et al. by Bill Lockyer, Attorney General of California, Richard M. Frank, Chief Assistant Attorney General, Mary E. Hackenbracht, Senior Assistant Attorney General, and Edna Walz, Deputy Attorney General, and by the Attorneys General for their respective States as follows: Ken Salazar of Colorado, M. Jane Brady of Delaware, Jennifer M. Granholm of Michigan, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Betty D. Montgomery of Ohio, D. Michael Fisher of Pennsylvania, and Christine Q Gregoire of Washington; for the American Mushroom Institute et al. by John G. Roberts, Jr., David G. Leitch, and Richard T. Rossier; and for the Western Mushroom Marketing Association et al. by Kendall L. Manock, Robert D. Wilkinson, and Linda Berg Othman.Briefs of amici curiae urging affirmance were filed for the Center for Individual Freedom by Erik S. Jaffe and Renee Giachino; for the Coalition of Cotton Apparel Importers by Daniel M. Price; for the DKT Liberty Project by Julia M. Carpenter; for Gerawan Farming, Inc., et al. by Michael W McConnell and Brian C. Leighton; for the Institute for Justice by William H. Mellor, Clint Bolick, and Scott G. Bullock; for the Washington Legal Foundation by Daniel J. Popeo and R. Shawn Gunnarson; and for Jeanne Charter et al. by Vernon E. Woodward and Lynn A. Hayes.408JUSTICE KENNEDY delivered the opinion of the Court. Four Terms ago, in Glickman v. Wileman Brothers & Elliott, Inc., 521 U. S. 457 (1997), the Court rejected a First Amendment challenge to the constitutionality of a series of agricultural marketing orders that, as part of a larger regulatory marketing scheme, required producers of certain California tree fruit to pay assessments for product advertising. In this case a federal statute mandates assessments on handlers of fresh mushrooms to fund advertising for the product. The Court of Appeals for the Sixth Circuit determined the mandated payments were not part of a more comprehensive statutory program for agricultural marketing, thus dictating a different result than in Glickman. It held the assessment requirement unconstitutional, and we granted certiorari. 531 U. S. 1009 (2000).The statute in question, enacted by Congress in 1990, is the Mushroom Promotion, Research, and Consumer Information Act, 104 Stat. 3854, 7 U. S. C. § 6101 et seq. The Act authorizes the Secretary of Agriculture to establish a Mushroom Council to pursue the statute's goals. Mushroom producers and importers, as defined by the statute, submit nominations from among their group to the Secretary, who then designates the Council membership. 7 U. S. C. §§ 6104(b) (l)(B), 6102(6), 6102(11). To fund its programs, the Act allows the Council to impose mandatory assessments upon handlers of fresh mushrooms in an amount not to exceed one cent per pound of mushrooms produced or imported. § 6104(g)(2). The assessments can be used for "projects of mushroom promotion, research, consumer information, and industry information." § 6104(c)(4). It is undisputed, though, that most moneys raised by the assessments are spent for generic advertising to promote mushroom sales.Respondent United Foods, Inc., is a large agricultural enterprise based in Tennessee. It grows and distributes many crops and products, including fresh mushrooms. In 1996 respondent refused to pay its mandatory assessments under409the Act. The forced subsidy for generic advertising, it contended, is a violation of the First Amendment. Respondent challenged the assessments in a petition filed with the Secretary. The United States filed an action in the United States District Court for the Western District of Tennessee, seeking an order compelling respondent to pay. Both matters were stayed pending this Court's decision in Glickman.After Glickman was decided, the Administrative Law Judge dismissed respondent's petition, and the Judicial Officer of the Department of Agriculture affirmed. Respondent sought review in District Court, and its suit was consolidated with the Government's enforcement action. The District Court, holding Glickman dispositive of the First Amendment challenge, granted the Government's motion for summary judgment. App. to Pet. for Cert. 18a.The Court of Appeals for the Sixth Circuit held this case is not controlled by Glickman and reversed the District Court. 197 F.3d 221 (1999). We agree with the Court of Appeals and now affirm.A quarter of a century ago, the Court held that commercial speech, usually defined as speech that does no more than propose a commercial transaction, is protected by the First Amendment. Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 762 (1976). "The commercial marketplace, like other spheres of our social and cultural life, provides a forum where ideas and information flourish." Edenfield v. Fane, 507 U. S. 761, 767 (1993).We have used standards for determining the validity of speech regulations which accord less protection to commercial speech than to other expression. See, e. g., ibid.; Central Hudson Gas & Elec. Corp. v. Public Servo Comm'n of N. Y., 447 U. S. 557 (1980). That approach, in turn, has been subject to some criticism. See, e. g., Glickman, supra, at 504 (THOMAS, J., dissenting); J,J, Liquormart, Inc. v. Rhode Island, 517 U. S. 484, 518 (1996) (THOMAS, J., concurring in410part and concurring in judgment); Rubin v. Coors Brewing Co., 514 U. S. 476, 493 (1995) (STEVENS, J., concurring in judgment). We need not enter into the controversy, for even viewing commercial speech as entitled to lesser protection, we find no basis under either Glickman or our other precedents to sustain the compelled assessments sought in this case. It should be noted, moreover, that the Government itself does not rely upon Central Hudson to challenge the Court of Appeals' decision, Reply Brief for Petitioners 9, n. 7, and we therefore do not consider whether the Government's interest could be considered substantial for purposes of the Central Hudson test. The question is whether the government may underwrite and sponsor speech with a certain viewpoint using special subsidies exacted from a designated class of persons, some of whom object to the idea being advanced.Just as the First Amendment may prevent the government from prohibiting speech, the Amendment may prevent the government from compelling individuals to express certain views, see Wooley v. Maynard, 430 U. S. 705, 714 (1977); West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 (1943), or from compelling certain individuals to pay subsidies for speech to which they object. See Abood v. Detroit Bd. of Ed., 431 U. S. 209 (1977); Keller v. State Bar of Cal., 496 U. S. 1 (1990); see also Glickman, supra, at 469, n. 13. Our precedents concerning compelled contributions to speech provide the beginning point for our analysis. The fact that the speech is in aid of a commercial purpose does not deprive respondent of all First Amendment protection, as held in the cases already cited. The subject matter of the speech may be of interest to but a small segment of the population; yet those whose business and livelihood depend in some way upon the product involved no doubt deem First Amendment protection to be just as important for them as it is for other discrete, little noticed groups in a society which values the freedom resulting from speech in all its diverse parts. First411Amendment concerns apply here because of the requirement that producers subsidize speech with which they disagree."[T]he general rule is that the speaker and the audience, not the government, assess the value of the information presented." Edenfield, supra, at 767. There are some instances in which compelled subsidies for speech contradict that constitutional principle. Here the disagreement could be seen as minor: Respondent wants to convey the message that its brand of mushrooms is superior to those grown by other producers. It objects to being charged for a message which seems to be favored by a majority of producers. The message is that mushrooms are worth consuming whether or not they are branded. First Amendment values are at serious risk if the government can compel a particular citizen, or a discrete group of citizens, to pay special subsidies for speech on the side that it favors; and there is no apparent principle which distinguishes out of hand minor debates about whether a branded mushroom is better than just any mushroom. As a consequence, the compelled funding for the advertising must pass First Amendment scrutiny.In the Government's view the assessment in this case is permitted by Glickman because it is similar in important respects. It imposes no restraint on the freedom of an objecting party to communicate its own message; the program does not compel an objecting party (here a corporate entity) itself to express views it disfavors; and the mandated scheme does not compel the expression of political or ideological views. See Glickman, 521 U. S., at 469-470. These points were noted in Glickman in the context of a different type of regulatory scheme and are not controlling of the outcome. The program sustained in Glickman differs from the one under review in a most fundamental respect. In Glickman the mandated assessments for speech were ancillary to a more comprehensive program restricting marketing autonomy. Here, for all practical purposes, the advertising itself,412far from being ancillary, is the principal object of the regulatory scheme.In Glickman we stressed from the very outset that the entire regulatory program must be considered in resolving the case. In deciding that case we emphasized "the importance of the statutory context in which it arises." Id., at 469. The California tree fruits were marketed "pursuant to detailed marketing orders that ha[d] displaced many aspects of independent business activity." Id., at 469. Indeed, the marketing orders "displaced competition" to such an extent that they were "expressly exempted from the antitrust laws." Id., at 461. The market for the tree fruit regulated by the program was characterized by "[c]ollective action, rather than the aggregate consequences of independent competitive choices." Ibid. The producers of tree fruit who were compelled to contribute funds for use in cooperative advertising "d[id] so as a part of a broader collective enterprise in which their freedom to act independently [wa]s already constrained by the regulatory scheme." Id., at 469. The opinion and the analysis of the Court proceeded upon the premise that the producers were bound together and required by the statute to market their products according to cooperative rules. To that extent, their mandated participation in an advertising program with a particular message was the logical concomitant of a valid scheme of economic regulation.The features of the marketing scheme found important in Glickman are not present in the case now before us. As respondent notes, and as the Government does not contest, cf. Brief for Petitioners 25, almost all of the funds collected under the mandatory assessments are for one purpose: generic advertising. Beyond the collection and disbursement of advertising funds, there are no marketing orders that regulate how mushrooms may be produced and sold, no exemption from the antitrust laws, and nothing preventing individual producers from making their own marketing decisions.413As the Court of Appeals recognized, there is no "heavy regulation through marketing orders" in the mushroom market. 197 F. 3d, at 225. Mushroom producers are not forced to associate as a group which makes cooperative decisions. "[T]he mushroom growing business ... is unregulated, except for the enforcement of a regional mushroom advertising program," and "the mushroom market has not been collectivized, exempted from antitrust laws, subjected to a uniform price, or otherwise subsidized through price supports or restrictions on supply." Id., at 222, 223.It is true that the party who protests the assessment here is required simply to support speech by others, not to utter the speech itself. We conclude, however, that the mandated support is contrary to the First Amendment principles set forth in cases involving expression by groups which include persons who object to the speech, but who, nevertheless, must remain members of the group by law or necessity. See, e. g., Abood v. Detroit Bd. of Ed., 431 U. S. 209 (1977); Keller v. State Bar of Gal., 496 U. S. 1 (1990).The Government claims that, despite the lack of cooperative marketing, the Abood rule protecting against compelled assessments for some speech is inapplicable. We did say in Glickman that Abood "recognized a First Amendment interest in not being compelled to contribute to an organization whose expressive activities conflict with one's 'freedom of belief.'" 521 U. S., at 471 (quoting Abood, 431 U. S., at 235). We take further instruction, however, from Abood's statement that speech need not be characterized as political before it receives First Amendment protection. Id., at 232. A proper application of the rule in Abood requires us to invalidate the instant statutory scheme. Before addressing whether a conflict with freedom of belief exists, a threshold inquiry must be whether there is some state imposed obligation which makes group membership less than voluntary; for it is only the overriding associational purpose which allows any compelled subsidy for speech in the first place. In414Abood, the infringement upon First Amendment associational rights worked by a union shop arrangement was "constitutionally justified by the legislative assessment of the important contribution of the union shop to the system of labor relations established by Congress." Id., at 222. To attain the desired benefit of collective bargaining, union members and nonmembers were required to associate with one another, and the legitimate purposes of the group were furthered by the mandated association.A similar situation obtained in Keller v. State Bar of Gal., supra. A state-mandated, integrated bar sought to ensure that "all of the lawyers who derive benefit from the unique status of being among those admitted to practice before the courts [were] called upon to pay a fair share of the cost." Id., at 12. Lawyers could be required to pay moneys in support of activities that were germane to the reason justifying the compelled association in the first place, for example, expenditures (including expenditures for speech) that related to "activities connected with disciplining members of the Bar or proposing ethical codes for the profession." Id., at 16. Those who were required to pay a subsidy for the speech of the association already were required to associate for other purposes, making the compelled contribution of moneys to pay for expressive activities a necessary incident of a larger expenditure for an otherwise proper goal requiring the cooperative activity. The central holding in Keller, moreover, was that the objecting members were not required to give speech subsidies for matters not germane to the larger regulatory purpose which justified the required association.The situation was much the same in Glickman. As noted above, the market for tree fruit was cooperative. To proceed, the statutory scheme used marketing orders that to a large extent deprived producers of their ability to compete and replaced competition with a regime of cooperation. The mandated cooperation was judged by Congress to be necessary to maintain a stable market. Given that producers415were bound together in the common venture, the imposition upon their First Amendment rights caused by using compelled contributions for germane advertising was, as in Abood and Keller, in furtherance of an otherwise legitimate program. Though four Justices who join this opinion disagreed, the majority of the Court in Glickman found the compelled contributions were nothing more than additional economic regulation, which did not raise First Amendment concerns. Glickman, 521 U. S., at 474; see id., at 477 (SouTER, J., dissenting).The statutory mechanism as it relates to handlers of mushrooms is concededly different from the scheme in Glickman; here the statute does not require group action, save to generate the very speech to which some handlers object. In contrast to the program upheld in Glickman, where the Government argued the compelled contributions for advertising were "part of a far broader regulatory system that does not principally concern speech," Reply Brief for Petitioner, O. T. 1996, No. 95-1184, p. 4, there is no broader regulatory system in place here. We have not upheld compelled subsidies for speech in the context of a program where the principal object is speech itself. Although greater regulation of the mushroom market might have been implemented under the Agricultural Marketing Agreement Act of 1937, 50 Stat. 246, 7 U. S. C. § 601 et seq., the compelled contributions for advertising are not part of some broader regulatory scheme. The only program the Government contends the compelled contributions serve is the very advertising scheme in question. Were it sufficient to say speech is germane to itself, the limits observed in Abood and Keller would be empty of meaning and significance. The cooperative marketing structure relied upon by a majority of the Court in Glickman to sustain an ancillary assessment finds no corollary here; the expression respondent is required to support is not germane to a purpose related to an association independent from the speech itself; and the rationale of Abood extends to the party416who objects to the compelled support for this speech. For these and other reasons we have set forth, the assessments are not permitted under the First Amendment.Our conclusions are not inconsistent with the Court's decision in Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626 (1985), a case involving attempts by a State to prohibit certain voluntary advertising by licensed attorneys. The Court invalidated the restrictions in substantial part but did permit a rule requiring that attorneys who advertised by their own choice and who referred to contingent fees should disclose that clients might be liable for costs. Noting that substantial numbers of potential clients might be misled by omission of the explanation, the Court sustained the requirement as consistent with the State's interest in "preventing deception of consumers." Id., at 651. There is no suggestion in the case now before us that the mandatory assessments imposed to require one group of private persons to pay for speech by others are somehow necessary to make voluntary advertisements nonmisleading for consumers.The Government argues the advertising here is government speech, and so immune from the scrutiny we would otherwise apply. As the Government admits in a forthright manner, however, this argument was "not raised or addressed" in the Court of Appeals. Brief for Petitioners 32, n. 19. The Government, citing Lebron v. National Railroad Passenger Corporation, 513 U. S. 374 (1995), suggests that the question is embraced within the question set forth in the petition for certiorari. In Lebron, the theory presented by the petitioner in the brief on the merits was addressed by the court whose judgment was being reviewed. Id., at 379. Here, by contrast, it is undisputed that the Court of Appeals did not mention the government speech theory now put forward for our consideration.The Government's failure to raise its argument in the Court of Appeals deprived respondent of the ability to ad-417dress significant matters that might have been difficult points for the Government. For example, although the Government asserts that advertising is subject to approval by the Secretary of Agriculture, respondent claims the approval is pro forma. This and other difficult issues would have to be addressed were the program to be labeled, and sustained, as government speech.We need not address the question, however. Although in some instances we have allowed a respondent to defend a judgment on grounds other than those pressed or passed upon below, see, e. g., United States v. Estate of Romani, 523 U. S. 517, 526, n. 11 (1998), it is quite a different matter to allow a petitioner to assert new substantive arguments attacking, rather than defending, the judgment when those arguments were not pressed in the court whose opinion we are reviewing, or at least passed upon by it. Just this Term we declined an invitation by an amicus to entertain new arguments to overturn a judgment, see Lopez v. Davis, 531 U. S. 230, 244, n. 6 (2001), and we consider it the better course to decline a party's suggestion for doing so in this case.For the reasons we have discussed, the judgment of the Court of Appeals isAffirmed

OCTOBER TERM, 2000SyllabusUNITED STATES ET AL. v. UNITED FOODS, INC.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUITNo. 00-276. Argued April 17, 200l-Decided June 25, 2001The Mushroom Promotion, Research, and Consumer Information Act mandates that fresh mushroom handlers pay assessments used primarily to fund advertisements promoting mushroom sales. Respondent refused to pay the assessment, claiming that it violates the First Amendment. It filed a petition challenging the assessment with the Secretary of Agriculture, and the United States filed an enforcement action in the District Court. After the administrative appeal was denied, respondent sought review in the District Court, which consolidated the two cases. In granting the Government summary judgment, the court found dispositive the decision in Glickman v. Wileman Brothers & Elliott, Inc., 521 U. S. 457, that the First Amendment was not violated when agricultural marketing orders, as part of a larger regulatory marketing scheme, required producers of California tree fruit to pay assessments for product advertising. The Sixth Circuit reversed, holding that Glickman did not control because the mandated payments in this case were not part of a comprehensive statutory agricultural marketing program.Held: The assessment requirement violates the First Amendment.Pp. 409-417.(a) Even viewing the expression here as commercial speech, there is no basis under Glickman or this Court's other precedents to sustain the assessments. The First Amendment may prevent the government from, inter alia, compelling individuals to pay subsidies for speech to which they object. See Abood v. Detroit Bd. of Ed., 431 U. S. 209; Keller v. State Bar of Gal., 496 U. S. 1. Such precedents provide the beginning point for analysis here. Respondent wants to convey the message that its brand of mushrooms is superior to those grown by other producers, and it objects to being charged for a contrary message which seems to be favored by a majority of producers. First Amendment values are at serious risk if the government can compel a citizen or group of citizens to subsidize speech on the side that it favors; and there is no apparent principle distinguishing out of hand minor debates about whether a branded mushroom is better than just any mushroom. Thus, the compelled funding here must pass First Amendment scrutiny. Pp.409-411.406(b) The program sustained in Glickman differs from the one at issue here in a fundamental respect: The mandated assessments for speech in that case were ancillary to a more comprehensive program restricting marketing autonomy. This Court stressed in Glickman that the entire regulatory program must be considered in resolving a case. There, California tree fruits were marketed under detailed marketing orders that had displaced competition to such an extent that they had an antitrust exemption; the Court presumed that the producers compelled to contribute funds for cooperative advertising were bound together and required by statute to market their products according to cooperative rules. Those important features are not present here. Most of the funds at issue are used for generic advertising; and there are no marketing orders regulating mushroom production and sales, no antitrust exemption, and nothing preventing individual producers from making their own marketing decisions. Mushroom growers are not forced to associate as a group that makes cooperative decisions. Although respondent is required simply to support speech by others, not to utter speech itself, that mandated support is contrary to the First Amendment principles set forth in cases involving expression by groups which include persons who object to the speech but, nevertheless, must remain group members by law or necessity. See, e. g., Abood, supra; Keller, supra. Properly applied, Abood's rule protecting against compelled assessments for some speech requires this scheme to be invalidated. Before addressing whether a conflict with freedom of belief exists, the threshold inquiry must be whether there is some state imposed obligation making group membership less than voluntary; for it is only the overriding associational purpose which allows any compelled subsidy for speech in the first place. In Abood, Keller, and Glickman, the objecting members were required to associate for purposes other than the compelled subsidies for speech. Here, however, the only program the Government contends the assessments serve is the very advertising scheme in question. Were it sufficient to say speech is germane to itself, Abood's and Keller's limits would be empty of meaning and significance. No corollary to Glickman's cooperative marketing structure exists here; the expression respondent is required to support is not germane to an association's purpose independent from the speech itself; and Abood's rationale extends to the party who objects to the compelled support for this speech. There is also no suggestion here that the assessments are necessary to make voluntary advertisements nonmisleading for consumers. Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626, distinguished.407Full Text of Opinion

1987_86-6867

CHIEF JUSTICE REHNQUIST delivered the opinion of the Court. *Petitioner, sentenced to death by the Louisiana state courts, makes two federal constitutional attacks on his sentence. He first contends that the trial court impermissibly coerced the jury to return a sentence of death by inquiries it made to the jury and a supplemental charge which it gave to the jury following the receipt of a communication from that body. Petitioner's second contention is that the death sentence violates the Eighth Amendment to the United States Constitution because the single "aggravating circumstance" found by the jury and upheld by the Supreme Court of Louisiana merely duplicates an element of the underlying offense of first-degree murder of which he was convicted at the guilt stage. We reject both of these contentions.IPetitioner was charged with killing a woman with whom he had lived, three members of her family, and one of her male friends. The jury found petitioner guilty of two counts of manslaughter and three counts of first-degree murder; an essential element of the latter verdicts was a finding that petitioner intended "to kill or inflict great bodily harm upon more than one person." La.Rev.Stat.Ann. § 14:30A(3) (West 1986). Page 484 U. S. 234The jury commenced its sentencing deliberations on the same day that it returned the verdict of guilt, and the judge's charge to them in this second phase of the trial included the familiar admonition that the jurors should consider the views of others with the objective of reaching a verdict, but that they should not surrender their own honest beliefs in doing so. The court also charged the jury that, if it were unable to reach a unanimous recommendation, the court would impose a sentence of life imprisonment without the possibility of probation, parole, or suspension of sentence.The jury was allowed to retire late in the evening and reconvene the next day. During the afternoon of that day, a note came from the foreman of the jury stating that the jury was unable to reach a decision at that time, and requesting that the court again advise the jury as to its responsibilities. The jury was called back. The court provided a piece of paper to each juror and asked each to write on the paper his or her name and the answer to the question whether "further deliberations would be helpful in obtaining a verdict." The jurors complied, and were asked to retire to the jury room. The papers revealed eight answers in the affirmative -- that more deliberation would be helpful -- and four in the negative. Defense counsel renewed a previously made motion for a mistrial, arguing that the jury was obviously hung. The trial court denied the motion, noting that this was the first sign that the jury was having trouble reaching a verdict in the penalty phase. The court directed that, as previously agreed upon, the jury would return to the courtroom and be instructed again as to its obligations in reaching a verdict.When the jurors returned to the courtroom, a new note from them was given to the judge. This note stated that some of the jurors had misunderstood the question previously asked. The judge polled the jury again using the same method but changing the question slightly; the judge asked, "Do you feel that any further deliberations will enable you to arrive at a verdict?" App. 55. This time 11 jurors answered Page 484 U. S. 235 in the affirmative and 1 in the negative. The court then reinstructed the jury:"Ladies and Gentlemen, as I instructed you earlier, if the jury is unable to unanimously agree on a recommendation, the Court shall impose the sentence of Life Imprisonment without benefit of Probation, Parole, or Suspension of Sentence.""When you enter the jury room, it is your duty to consult with one another to consider each other's views and to discuss the evidence with the objective of reaching a just verdict if you can do so without violence to that individual judgment.""Each of you must decide the case for yourself, but only after discussion and impartial consideration of the case with your fellow jurors. You are not advocates for one side or the other. Do not hesitate to reexamine your own views and to change your opinion if you are convinced you are wrong, but do not surrender your honest belief as to the weight and effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict."Id. at 56.Defense counsel did not object to either poll, to the manner in which the polls were conducted, or to the supplemental instruction. The jury resumed its deliberations, and in 30 minutes returned with a verdict sentencing petitioner to death on all three counts of first-degree murder. In support of all three sentences, the jury found the statutory aggravating circumstance of "knowingly creat[ing] a risk of death or great bodily harm to more than one person." La.Code Crim.Proc.Ann., Art. 905.4(d) (West 1984). One death sentence was additionally supported by the aggravating circumstance that "the victim was a witness in a prosecution against the defendant. . . ." Art. 905.4(h).On direct appeal, the Louisiana Supreme Court upheld the convictions and sentences. State v. Lowenfield, 495 So. 2d 1245 (1985), cert. denied, 476 U.S. 1153 (1986). The court Page 484 U. S. 236 ruled that the evidence was insufficient to support the aggravating circumstance that the victim was a witness in a prosecution against the defendant, but concluded that the remaining aggravating circumstance was established by the evidence, and was sufficient to support the sentences. 495 So. 2d at 1256-1258. The court went on to hold that the trial court had not abused its discretion in declining to declare a mistrial during sentencing when the jury indicated that it was having difficulty reaching a verdict. "This court has rejected the construction that the court is required to declare a deadlock at the first sign of trouble." Id. at 1259. Finally, the court rejected petitioner's argument that the judge had coerced the sentence recommendations from the jury."It is a well settled proposition that, when the court is informed by a jury that they are having difficulty in agreeing, it is not error for the court to impress upon them the importance of the case, urge them to come to agreement, and send them back for further deliberation."Ibid.Subsequently, petitioner sought habeas corpus from the United States District Court for the Eastern District of Louisiana. Petitioner raised, inter alia, the two issues now before this Court: whether a sentence of death may validly rest upon a single aggravating circumstance that is a necessary element of the underlying offense of first-degree murder, and whether the judge had coerced the sentence verdicts from the jury. The District Court denied relief, and a divided panel of the United States Court of Appeals for the Fifth Circuit affirmed. 817 F.2d 285 (1987). The panel unanimously rejected the aggravating circumstance claim. Id. at 289. The majority went on to conclude: "there is no showing of coercion; the record certainly does not demonstrate coercion sufficient to render the trial fundamentally unfair." Id. at 293. The dissenting judge argued that the combination of the supplemental instruction to the jury and the polling of the jury as to the usefulness of further deliberations constituted improper coercion. Id. at 299-303. Page 484 U. S. 237IIOur review of petitioner's contention that the jury was improperly coerced requires that we consider the supplemental charge given by the trial court "in its context, and under all the circumstances." Jenkins v. United States, 380 U. S. 445, 380 U. S. 446 (1965) (per curiam). The use of a supplemental charge has long been sanctioned. Nearly a century ago, in Allen v. United States, 164 U. S. 492 (1896), this Court reviewed a charge similar, but by no means identical, to that given to the Louisiana jury here, and concluded that it was not reversible error even within the federal system. The defendant in that case had been sentenced to death by Judge Parker in the Western District of Arkansas, exercising a jurisdiction unique among federal courts. The judge's charge is not set out verbatim in the opinion of this Court, but it differed from the charge given in the present case in that the Allen charge urged the minority to consider the views of the majority and ask themselves whether their own views were reasonable under the circumstances. This Court upheld the conviction and sentence against the defendant's claim of coercion, saying:"The very object of the jury system is to secure unanimity by a comparison of views, and by arguments among the jurors themselves. It certainly cannot be the law that each juror should not listen with deference to the arguments and with a distrust of his own judgment, if he finds a large majority of the jury taking a different view of the case from what he does himself. It cannot be that each juror should go to the jury room with a blind determination that the verdict shall represent his opinion of the case at that moment; or, that he should close his ears to the arguments of men who are equally honest and intelligent as himself."Id. at 164 U. S. 501-502.The continuing validity of this Court's observations in Allen are beyond dispute, and they apply with even greater Page 484 U. S. 238 force in a case such as this, where the charge given, in contrast to the so-called "traditional Allen charge," does not speak specifically to the minority jurors. [Footnote 1] But, in this case, one of the purposes served by such a charge -- the avoidance of the societal costs of a retrial -- is not present, because Louisiana law provides that, if the jury hangs, the court shall impose a sentence of life imprisonment. La.Code Crim.Proc.Ann., Art. 905.8 (West 1984). Petitioner naturally urges that this difference makes the charge here impermissible under the Due Process Clause and the Eighth Amendment. The difference between the division of function between the jury and judge in this case and the division in Allen obviously weighs in the constitutional calculus, but we do not find it dispositive. The State has, in a capital sentencing proceeding, a strong interest in having the jury "express the conscience of the community on the ultimate question of life or death." Witherspoon v. Illinois, 391 U. S. 510, 319 U. S. 519 (1968). Surely, if the jury had returned from its deliberations after only one hour and informed the court that it had failed to achieve unanimity on the first ballot, the court would incontestably have had the authority to insist that they deliberate further. This is true even in capital cases such as this one and Allen, even though we are naturally mindful in such cases that the "qualitative Page 484 U. S. 239 difference between death and other penalties calls for a greater degree of reliability when the death sentence is imposed." Lockett v. Ohio, 438 U. S. 586, 604 (1978).Petitioner relies on this Court's decision in Jenkins v. United States, supra, [Footnote 2] but we think that case affords him no help. There the jury had sent a note to the judge to the effect that it was unable to agree upon a verdict; the judge then gave additional instructions to the jury, in the course of which he said: "You have got to reach a decision in this case.'" Id. at 446. This Court concluded that, "in its context and under all the circumstances, the judge's statement had the coercive effect attributed to it." Ibid. The difference between the language used there and the language used in the present case is sufficiently obvious to show the fallacy of petitioner's reliance. The same is true of the colloquy between the judge and the foreman of the jury in United States v. United States Gypsum Co., 438 U. S. 422, 438 U. S. 459 (1978), upon which petitioner also relies.Petitioner argues, however, that the coercive effect of the supplemental charge was exacerbated by inquiries made to the jury by the trial court. In Brasfield v. United States, 272 U. S. 448 (1926), the trial court had, after deliberations stalled, inquired as to how the jury was divided, and was informed simply that the jury stood nine to three. The jury resumed deliberations, and subsequently found the defendants guilty. This Court concluded that the inquiry into the jury's numerical division necessitated reversal because it was generally coercive and almost always brought to bear "in some degree, serious although not measurable, an improper influence upon the jury." Id. at 272 U. S. 450. Although the decision Page 484 U. S. 240 in Brasfield was an exercise of this Court's supervisory powers, [Footnote 3] it is nonetheless instructive as to the potential dangers of jury polling.Petitioner's attempt to fit the instant facts within the holding of Brasfield is, however, unavailing. Here the inquiry as to the numerical division of the jury was not as to how they stood on the merits of the verdict, but how they stood on the question of whether further deliberations might assist them in returning a verdict. There is no reason why those who may have been in the minority on the merits would necessarily conclude that further deliberation would not be helpful, or that those in the majority would necessarily conclude otherwise. The two questions are clearly independent of one another. We believe the type of question asked by the trial court in this case is exactly what the Court in Brasfield implicitly approved when it stated:"[An inquiry as to numerical division] serves no useful purpose that cannot be attained by questions not requiring the jury to reveal the nature or extent of its division."Ibid.We are mindful that the jury returned with its verdict soon after receiving the supplemental instruction, and that this suggests the possibility of coercion. United States Gypsum Co., supra, at 438 U. S. 462. We note, however, that defense counsel did not object to either the polls or the supplemental instruction. We do not suggest that petitioner thereby waived this issue, Wainwright v. Witt, 469 U. S. 412, 469 U. S. 431, n. 11 (1985), but we think such an omission indicates that the potential for coercion argued now was not apparent to one on the spot. [Footnote 4] Id. at 469 U. S. 430-431, and n. 11. Page 484 U. S. 241We hold that, on these facts, the combination of the polling of the jury and the supplemental instruction was not "coercive" in such a way as to deny petitioner any constitutional right. By so holding, we do not mean to be understood as saying other combinations of supplemental charges and polling might not require a different conclusion. Any criminal defendant, and especially any capital defendant, being tried by a jury is entitled to the uncoerced verdict of that body. For the reasons stated we hold there was no coercion here.IIIPetitioner advances as a second ground for vacating his sentence of death that the sole aggravating circumstance found by the jury at the sentencing phase was identical to an element of the capital crime of which he was convicted. Petitioner urges that this overlap left the jury at the sentencing phase free merely to repeat one of its findings in the guilt phase, and thus not to narrow further in the sentencing phase the class of death-eligible murderers. Upon consideration of the Louisiana capital punishment scheme in the light of the decisions of this Court, we reject this argument.Louisiana has established five grades of homicide: first-degree murder, second-degree murder, manslaughter, negligent homicide, and vehicular homicide. La.Rev.Stat.Ann. § 14:29 (West 1986). Second-degree murder includes intentional murder and felony murder, and provides for punishment of life imprisonment without the possibility of parole. § 14:30.1. [Footnote 5] Louisiana defines first-degree murder to include a narrower class of homicides: Page 484 U. S. 242"First degree murder is the killing of a human being:""(1) When the offender has specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of aggravated kidnapping, aggravated escape, aggravated arson, aggravated rape, aggravated burglary, armed robbery, or simple robbery;""(2) When the offender has a specific intent to kill or to inflict great bodily harm upon a fireman or peace officer engaged in the performance of his lawful duties;""(3) When the offender has a specific intent to kill or to inflict great bodily harm upon more than one person; or""(4) When the offender has specific intent to kill or inflict great bodily harm and has offered, has been offered, has given, or has received anything of value for the killing.""(5) When the offender has the specific intent to kill or to inflict great bodily harm upon a victim under the age of twelve years."§ 14:30A.An individual found guilty of first-degree murder is sentenced by the same jury in a separate proceeding to either death or life imprisonment without benefit of parole, probation, or suspension of sentence. § 14:30C."A sentence of death shall not be imposed unless the jury finds beyond a reasonable doubt that at least one statutory aggravating circumstance exists and, after consideration of any mitigating circumstances, recommends that the sentence of death be imposed."La.Code Crim.Proc.Ann., Art. 905.3 (West 1984). Louisiana has established 10 statutory aggravating circumstances. Page 484 U. S. 243 Art. 905.4. [Footnote 6] If the jury returns a sentence of death, the sentence is automatically reviewable for excessiveness by the Supreme Court of Louisiana. Art. 905.9.Petitioner was found guilty of three counts of first-degree murder under § 14.30.A.(3): "[T]he offender has a specific intent to kill or to inflict great bodily harm upon more than one person." The sole aggravating circumstance both found by the jury and upheld by the Louisiana Supreme Court was that "the offender knowingly created a risk of death or great bodily harm to more than one person." Art. 905.4(d). In these circumstances, these two provisions are interpreted in Page 484 U. S. 244 a "parallel fashion" under Louisiana law. See State v. Williams, 480 So. 2d 721, 726-727 (La.1985). Petitioner's argument that the parallel nature of these provisions requires that his sentences be set aside rests on a mistaken premise as to the necessary role of aggravating circumstances.To pass constitutional muster, a capital sentencing scheme must"genuinely narrow the class of persons eligible for the death penalty, and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder."Zant v. Stephens, 462 U. S. 862, 462 U. S. 877 (1983); cf. Gregg v. Georgia, 428 U. S. 153 (1976). Under the capital sentencing laws of most States, the jury is required during the sentencing phase to find at least one aggravating circumstance before it may impose death. Id. at 428 U. S. 162-164 (reviewing Georgia sentencing scheme); Profitt v. Florida, 428 U. S. 242, 428 U. S. 247-250 (1976) (reviewing Florida sentencing scheme). By doing so, the jury narrows the class of persons eligible for the death penalty according to an objective legislative definition. Zant, supra, at 462 U. S. 878 ("[S]tatutory aggravating circumstances play a constitutionally necessary function at the stage of legislative definition: they circumscribe the class of persons eligible for the death penalty").In Zant v. Stephens, supra, we upheld a sentence of death imposed pursuant to the Georgia capital sentencing statute, under which"the finding of an aggravating circumstance does not play any role in guiding the sentencing body in the exercise of its discretion, apart from its function of narrowing the class of persons convicted of murder who are eligible for the death penalty."Id. at 462 U. S. 874. We found no constitutional deficiency in that scheme, because the aggravating circumstances did all that the Constitution requires.The use of "aggravating circumstances" is not an end in itself, but a means of genuinely narrowing the class of death-eligible persons, and thereby channeling the jury's discretion. We see no reason why this narrowing function may not be Page 484 U. S. 245 performed by jury findings at either the sentencing phase of the trial or the guilt phase. Our opinion in Jurek v. Texas, 428 U. S. 262 (1976), establishes this point. The Jurek Court upheld the Texas death penalty statute, which, like the Louisiana statute, narrowly defined the categories of murders for which a death sentence could be imposed. If the jury found the defendant guilty of such a murder, it was required to impose death so long as it found beyond a reasonable doubt that the defendant's acts were deliberate, the defendant would probably constitute a continuing threat to society, and, if raised by the evidence, the defendant's acts were an unreasonable response to the victim's provocation. Id. at 428 U. S. 269. We concluded that the latter three elements allowed the jury to consider the mitigating aspects of the crime and the unique characteristics of the perpetrator, and therefore sufficiently provided for jury discretion. Id. at 271-274. But the opinion announcing the judgment noted the difference between the Texas scheme, on the one hand, and the Georgia and Florida schemes discussed in the cases of Gregg, supra, and Proffitt, supra:"While Texas has not adopted a list of statutory aggravating circumstances the existence of which can justify the imposition of the death penalty, as have Georgia and Florida, its action in narrowing the categories of murders for which a death sentence may ever be imposed serves much the same purpose. . . . In fact, each of the five classes of murders made capital by the Texas statute is encompassed in Georgia and Florida by one or more of their statutory aggravating circumstances. . . . Thus, in essence, the Texas statute requires that the jury find the existence of a statutory aggravating circumstance before the death penalty may be imposed. So far as consideration of aggravating circumstances is concerned, therefore, the principal difference between Texas and the other two States is that the death penalty is an available sentencing option -- even potentially -- for Page 484 U. S. 246 a smaller class of murders in Texas."428 U.S. at 428 U. S. 270-271 (citations omitted).It seems clear to us from this discussion that the narrowing function required for a regime of capital punishment may be provided in either of these two ways: the legislature may itself narrow the definition of capital offenses, as Texas and Louisiana have done, so that the jury finding of guilt responds to this concern, or the legislature may more broadly define capital offenses and provide for narrowing by jury findings of aggravating circumstances at the penalty phase. See also Zant, supra, at 462 U. S. 876, n. 13, discussing Jurek and concluding: "[I]n Texas, aggravating and mitigating circumstances were not considered at the same stage of the criminal prosecution."Here, the "narrowing function" was performed by the jury at the guilt phase when it found defendant guilty of three counts of murder under the provision that "the offender has a specific intent to kill or to inflict great bodily harm upon more than one person." The fact that the sentencing jury is also required to find the existence of an aggravating circumstance in addition is no part of the constitutionally required narrowing process, and so the fact that the aggravating circumstance duplicated one of the elements of the crime does not make this sentence constitutionally infirm. There is no question but that the Louisiana scheme narrows the class of death-eligible murderers, and then, at the sentencing phase, allows for the consideration of mitigating circumstances and the exercise of discretion. The Constitution requires no more.The judgment of the Court of Appeals for the Fifth Circuit is accordinglyAffirmed

U.S. Supreme CourtLowenfield v. Phelps, 484 U.S. 231 (1988)Lowenfield v. PhelpsNo. 86-6867Argued October 14, 1987Decided January 13, 1988484 U.S. 231SyllabusAt petitioner's state court trial on charges of killing five people, the jury returned guilty verdicts on three counts of first-degree murder, an essential statutory element of which, under the circumstances, was a finding of intent "to kill or inflict great bodily harm upon more than one person." At the penalty phase, in response to notes from the jury indicating difficulty in reaching a decision, the court twice polled the jury as to whether further deliberations would be helpful in reaching a verdict, a majority of the jurors answering affirmatively in each instance. After the second poll, the judge reiterated earlier instructions, declaring that he would impose a sentence of life imprisonment without benefit of probation, parole, or suspended sentence if the jurors were unable to reach a unanimous recommendation, and admonishing them to consult and consider each other's views with the objective of reaching a verdict, but not to surrender their own honest beliefs in doing so. Defense counsel did not object to either poll, to the manner in which they were conducted, or to the supplemental instruction. The jury then returned a verdict in 30 minutes, sentencing petitioner to death on all three first-degree murder counts upon finding the statutory aggravating circumstance of "knowingly creat[ing] a risk of death or great bodily harm to more than one person." After the Louisiana Supreme Court upheld petitioner's convictions and sentences, the Federal District Court denied him habeas corpus relief, and the Court of Appeals affirmed.Held:1. When considered in context and under all the circumstances, the two jury polls and the supplemental charge did not impermissibly coerce the jury to return a death sentence. The supplemental charge is similar to the traditional Allen charge long approved by this Court on the ground that it is an attempt to secure jury unanimity, which reasoning applies with even greater force here, since this charge does not speak specifically to the minority jurors. Although not without constitutional weight, the fact that one of the purposes served by such a charge -- the avoidance of the societal costs of a retrial -- is not present here, because Louisiana law requires the court to impose a life sentence if the jury is hung, does not render the charge impermissible under the Due Process Page 484 U. S. 232 Clause and the Eighth Amendment in light of the State's strong interest in having capital sentencing juries express the conscience of the community on the ultimate question of life or death. Jenkins v. United States, 380 U. S. 445, and United States v. United States Gypsum Co., 438 U. S. 422, cannot aid petitioner, since the supplemental instruction given in this case did not require the jury to reach a decision. Similarly, Brasfield v. United States, 272 U. S. 448, cannot help petitioner, since the questions asked the jury here did not require it to reveal the nature or extent of its division on the merits. Although coercion is suggested by the fact that the jury returned its verdict soon after receiving the supplemental instruction, defense counsel's failure to object to either the polls or the instruction at the time indicates that the potential for coercion argued now was not then apparent. Pp. 484 U. S. 237-241.2. The death sentence does not violate the Eighth Amendment simply because the single statutory "aggravating circumstance" found by the jury duplicates an element of the underlying offense of first-degree murder. To pass constitutional muster, a capital sentencing scheme must"genuinely narrow the class of persons eligible for the death penalty, and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder."Zant v. Stephens, 462 U. S. 862, 462 U. S. 877; cf. Gregg v. Georgia, 428 U. S. 153. This narrowing function may constitutionally be provided in either of two ways: the legislature may broadly define capital offenses and provide for narrowing by jury findings of aggravating circumstances at the penalty phase, as most States have done, or the legislature may itself narrow the definition of capital offenses so that the jury finding at the guilt phase responds to this concern, as Louisiana has done here. See Jurek v. Texas, 428 U. S. 262. Thus, the duplicative nature of the statutory aggravating circumstance did not render petitioner's sentence infirm, since the constitutionally mandated narrowing function was performed at the guilt phase, and the Constitution did not require an additional aggravating circumstance finding at the penalty phase. Pp. 484 U. S. 241-246.817 F.2d 285, affirmed.REHNQUIST, C.J., delivered the opinion of the Court, in which WHITE, BLACKMUN, O'CONNOR, and SCALIA, JJ., joined, and in Part III of which, except for the last sentence thereof, STEVENS, J., joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, and in Part I of which STEVENS, J., joined, post, p. 484 U. S. 246. Page 484 U. S. 233

1977_77-693

BRENNAN, J., filed a dissenting opinion, in which BURGER, C.J., and MARSHALL and POWELL, JJ., joined, post, p. 437 U. S. 668.MR. JUSTICE REHNQUIST announced the judgment of the Court, and delivered an opinion in which MR. JUSTICE STEWART, MR. JUSTICE WHITE, and MR. JUSTICE STEVENS joined.On August 15, 1977, the Court of Appeals for the Seventh Circuit granted a petition for writ of mandamus ordering petitioner, a Judge of the United States District Court for the Northern District of Illinois, "to proceed immediately" to adjudicate a claim based upon the Securities Exchange Act of 1934 and brought by respondent, Calvert Fire Insurance Co., against American Mutual Reinsurance Co., despite the pendency of a substantially identical proceeding between the same parties in the Illinois state courts. 560 F.2d 792, 797. The Court of Appeals felt that our recent decision in Colorado River Water Conservation Dist. v. United States, 424 U. S. 800 (1976), compelled the issuance of the writ. We granted Page 437 U. S. 658 certiorari to consider the propriety of the use of mandamus to review a District Court's decision to defer to concurrent state proceedings, 434 U.S. 1008, and we now reverse.IRespondent Calvert writes property and casualty insurance. American Mutual operates a reinsurance pool whereby a number of primary insurers protect themselves against unanticipated losses. Membership in the pool requires both the payment of premiums by pool members and indemnification of the pool in the event that losses exceed those upon which the premiums are calculated. Calvert joined the pool in early 1974, but, in April of that year, notified American Mutual of its election to rescind the agreement by which it became a member.In July, 1974, American Mutual sued in the Circuit Court of Cook County, Ill., to obtain a declaration that the pool agreement between it and Calvert was in full force and effect. Six months later, Calvert, in its answer to that suit, asserted that the pool agreement was not enforceable against it, because of violations by American Mutual of the Securities Act of 1933, the Securities Exchange Act of 1934, the Illinois Securities Act, the Maryland Securities Law, and the state common law of fraud. With its answer, Calvert filed a counterclaim seeking $2 million in damages from American Mutual on all of the grounds that it set up in defense except for the defense based on the Securities Exchange Act of 1934. Since § 27 of that Act, 48 Stat. 902, as amended, 15 U.S.C. § 78aa (1976 ed.), granted the district courts of the United States exclusive jurisdiction to enforce the Act, Calvert, on the same day, filed a complaint in the United States District Court for the Northern District of Illinois seeking damages from American Mutual for an alleged violation of Rule 10b-5, 17 CFR § 240.10b-5 (1977), issued under § 10(b) of the Act, 15 U.S.C. § 78j(b) (1976 ed.). Joined with this Rule 10b-5 Page 437 U. S. 659 count were claims based on each of the other grounds asserted by it in defense to American Mutual's state court action.In February, 1975, more than seven months after it had begun its state court action, but less than one month after Calvert had filed its answer and counterclaim in that action and its complaint in the federal court, American Mutual moved to dismiss or abate the latter. The claim for dismissal was based on the substantive assertion that the reinsurance agreement was not a "security" within the meaning of the 1933 or 1934 Act. The motion to abate was based on the fact that the state proceedings, commenced six months before the federal proceedings, included every claim and defense except the claim for damages based on Rule 10b-5 under the 1934 Act.In May, 1975, Judge Will substantially granted American Mutual's motion to defer the federal proceeding until the completion of the state proceedings, observing that a tentative trial date had already been set by the state court. Federal litigation of the same issues would therefore be duplicative and wasteful. He rejected Calvert's contention that the court should proceed with the entire case because of its exclusive jurisdiction under the 1934 Act, noting that the state court was bound to provide the equitable relief sought by Calvert by recognizing a valid Rule 10b-5 claim as a defense to the state action. [Footnote 1] Only Calvert's claim for damages under Rule 10b-5 was subject to the exclusive jurisdiction of the federal court. Petitioner therefore stayed all aspects of Calvert's federal action subject to the concurrent jurisdiction of both courts, recognizing "only Calvert's very limited claim for Page 437 U. S. 660 monetary damages under the 1934 Securities Act as a viable claim in this court." App. to Pet. for Cert. B-9. On May 9, 1975, Judge Will heard oral argument on the basic question of whether Calvert's interest in the reinsurance pool is a security within the meaning of the 1934 Act. He has not yet rendered a decision on that issue. [Footnote 2]Judge Will rejected two motions to reconsider his stay order, and refused to certify an interlocutory appeal pursuant to 28 U.S.C. § 1292(b). On May 26, 1976, Calvert petitioned the Court of Appeals for the Seventh Circuit for a writ of mandamus directing Judge Will to proceed to adjudicate its Rule 105 claims. [Footnote 3] Nearly 14 months later, on August 15, 1977, the Court of Appeals granted the petition and directed Judge Will to "proceed immediately with Calvert's claim for damages and equitable relief under the Securities Exchange Act of 1934." 560 F.2d at 797. [Footnote 4] Page 437 U. S. 661We granted certiorari to consider Judge Will's contention that the issuance of the writ of mandamus impermissibly interfered with the discretion of a district court to control its own docket. 434 U.S. 1008 (1978).IIThe correct disposition of this case hinges in large part on the appropriate standard of inquiry to be employed by a court of appeals in determining whether to issue a writ of mandamus to a district court. On direct appeal, a court of appeals has broad authority to "modify, vacate, set aside or reverse" an order of a district court, and it may direct such further action on remand "as may be just under the circumstances." 28 U.S.C. § 2106. By contrast, under the All Writs Act, 28 U.S.C. § 1651(a), courts of appeals may issue a writ of mandamus only when "necessary or appropriate in aid of their respective jurisdictions." Whereas a simple showing of error may suffice to obtain a reversal on direct appeal, to issue a writ of mandamus under such circumstances "would undermine the settled limitations upon the power of an appellate court to review interlocutory orders." Will v. United States, 389 U. S. 90, 389 U. S. 98 n.6 (1967).As we have repeatedly reaffirmed in cases such as Kerr v. United States District Court, 426 U. S. 394, 426 U. S. 402 (1976), and Bankers Life & Cas. Co. v. Holland, 346 U. S. 379, 346 U. S. 382 (1953), the"traditional use of the writ in aid of appellate jurisdiction both at common law and in the federal courts has been to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so."Roche v. Evaporated Milk Assn., 319 U. S. 21, 319 U. S. 26 (1943). Calvert makes no contention that petitioner has exceeded the bounds of his jurisdiction. Rather, it contends that the District Court, in entering the stay order, has refused "to exercise its authority when it is its duty to do so." Ibid. There can be no doubt that, where a district Page 437 U. S. 662 court persistently and without reason refuses to adjudicate a case properly before it, the court of appeals may issue the writ "in order that [it] may exercise the jurisdiction of review given by law." Insurance Co. v. Comstock, 16 Wall. 258, 83 U. S. 270 (1873)."Otherwise the appellate jurisdiction could be defeated, and the purpose of the statute authorizing the writ thwarted, by unauthorized action of the district court obstructing the appeal."Roche, supra at 319 U. S. 25. [Footnote 5]To say that a court of appeals has the power to direct a district court to proceed to judgment in a pending case "when it is its duty to do so," 319 U.S. at 319 U. S. 26, states the standard, but does not decide this or any other particular case. It is essential that the moving party satisfy "the burden of showing that its right to issuance of the writ is clear and indisputable.'" Bankers Life & Cas. Co., supra at 346 U. S. 384, quoting United States v. Duell, 172 U. S. 576, 172 U. S. 52 (1899). Judge Will urges that Calvert does not have a "clear and indisputable" right to the adjudication of its claims in the District Court without regard to the concurrent state proceedings. To that issue we now must turn.IIIIt is well established that "the pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction." McClellan v. Carland, 217 U. S. 268, 217 U. S. 282 (1910). It is equally well settled that a district court is "under no compulsion to exercise that jurisdiction," Brillhart v. Excess Ins. Co., 316 U. S. 491, Page 437 U. S. 663 316 U. S. 494 (1942), where he controversy may be settled more expeditiously in the state court. Although most of our decisions discussing the propriety of stays or dismissals of duplicative actions have concerned conflicts of jurisdiction between two federal district courts, e.g., Kerotest Mfg. Co., v. C-O-Two Fire Equipment Co., 342 U. S. 180 (1952); Landis v. North American Co., 299 U. S. 248 (1936), we have recognized the relevance of those cases in the analogous circumstances presented here. See Colorado River, 424 U.S. at 424 U. S. 817-819. In both situations, the decision is largely committed to the "carefully considered judgment," id. at 424 U. S. 818, of the district court.This power has not always been so clear. In McClellan, on facts similar to those presented here, this Court indicated that the writ might properly issue where the District Court had stayed its proceedings in deference to concurrent state proceedings. [Footnote 6] Such an automatic exercise of authority may well have been appropriate in a day when Congress had authorized fewer claims for relief in the federal courts, so that duplicative litigation and the concomitant tension between state and federal courts could rarely result. However, as the overlap between state claims and federal claims increased, this Court soon recognized that situations would often arise when it would be appropriate to defer to the state courts."Ordinarily, it would be uneconomical as well as vexatious for a federal court to proceed in a declaratory judgment suit where another suit is pending in a state court presenting the same issues, not governed by federal law, Page 437 U. S. 664 between the same parties. Gratuitous interference with the orderly and comprehensive disposition of a state court litigation should be avoided."Brillhart, supra at 316 U. S. 495. The decision in such circumstances is largely committed to the discretion of the district court. 316 U.S. at 316 U. S. 494. Furthermore, Colorado River, supra at 424 U. S. 820, established that such deference may be equally appropriate even when matters of substantive federal law are involved in the case.It is true that Colorado River emphasized "the virtually unflagging obligation of the federal courts to exercise the jurisdiction given them." 424 U.S. at 424 U. S. 817. That language underscores our conviction that a district court should exercise its discretion with this factor in mind, but it in no way undermines the conclusion of Brillhart that the decision whether to defer to the concurrent jurisdiction of a state court is, in the last analysis, a matter committed to the district court's discretion. Seizing upon the phrase "unflagging obligation" in an opinion which upheld the correctness of a district court's final decision to dismiss because of concurrent jurisdiction does little to bolster a claim for the extraordinary writ of mandamus in a case such as this, where the District Court has rendered no final decision.We think it of considerably more importance than did the Court of Appeals that Colorado River came before the Court of Appeals on appeal pursuant to 28 U.S.C. § 121 following outright dismissal of the action by the District Court, rather than through an effort on the part of the federal court plaintiff to seek mandamus. Calvert contends here, and the Court of Appeals for the Seventh Circuit agreed, that Judge Will's order deferring the federal proceedings was "equivalent to a dismissal." 560 F.2d at 76. We are loath to rest our analysis on this ubiquitous phrase, for, if used carelessly or without a precise definition, it may impede, rather than assist, sound resolution of the underlying legal issue. Page 437 U. S. 665Obviously, if Judge Will had dismissed Calvert's action Calvert could have appealed the order of dismissal to the Court of Appeals, which could have required such action of Judge Will "as may be just under the circumstances." 28 U.S.C. § 2106. Since he did not dismiss the action, Calvert remained free to urge reconsideration of his decision to defer based on new information as to the progress of the state case; to this extent, at least, deferral was not "equivalent to a dismissal."There are sound reasons for our reiteration of the rule that a district court's decision to defer proceedings because of concurrent state litigation is generally committed to the discretion of that court. No one can seriously contend that a busy federal trial judge, confronted both with competing demands on his time for matters properly within his jurisdiction and with inevitable scheduling difficulties because of the unavailability of lawyers, parties, and witnesses, is not entrusted with a wide latitude in setting his own calendar. Had Judge Will simply decided on his own initiative to defer setting this case for trial until the state proceedings were completed, his action would have been the "equivalent" of granting the motion of American Mutual to defer, yet such action would, at best, have afforded Calvert a highly dubious claim for mandamus. We think the fact that the judge accomplished this same result by ruling favorably on a party's motion to defer does not change the underlying legal question.Although the District Court's exercise of its discretion may be subject to review and modification in a proper interlocutory appeal, cf. Landis, 299 U.S. at 299 U. S. 256-259, we are convinced that it ought not to be overridden by a writ of mandamus. [Footnote 7] Where Page 437 U. S. 666 a matter is committed to the discretion of a district court, it cannot be said that a litigant's right to a particular result is "clear and indisputable." [Footnote 8]Calvert contends that a district court is without power to stay proceedings, in deference to a contemporaneous state action, where the federal courts have exclusive jurisdiction over the issue presented. Whether or not this is so, petitioner has not purported to stay consideration of Calvert's claim for damages under the Securities Exchange Act of 1934, which is the only issue which may not be concurrently resolved by both courts. [Footnote 9] It is true that petitioner has not yet ruled upon this claim. Where a district court obstinately refuses to adjudicate a matter properly before it, a court of appeals may issue the writ to correct "unauthorized action of the district Page 437 U. S. 667 court obstructing the appeal." Roche, 319 U.S. at 319 U. S. 25, citing Ex parte United States, 287 U. S. 241 (1932). Calvert, however, has neither alleged nor proved such a heedless refusal to proceed as a basis for the issuance of the writ here. Its petition offers only the bare allegation that Judge Will "in effect" abated the damages claim in deference to the state proceedings. App. 12. Judge Will has never issued such an order, and the sparse record before us will not support any such inference. So far as appears, the delay in adjudicating the damages claim is simply a product of the normal excessive load of business in the District Court, compounded by "the unfortunate consequence of making the judge a litigant" in this mandamus proceeding. Ex parte Fahey, 332 U. S. 258, 332 U. S. 260 (1947).The judgment of the Court of Appeals is thereforeReversed

U.S. Supreme CourtWill v. Calvert Fire Ins. Co., 437 U.S. 655 (1978)Will v. Calvert Fire Insurance Co.No. 77-693Argued April 19, 1978Decided June 23, 1978437 U.S. 655SyllabusAfter Calvert Fire Insurance Co. (hereafter respondent) had advised American Mutual Reinsurance Co. (American) that respondent was rescinding its membership in a reinsurance pool that American operated, American sued respondent in an Illinois state court for a declaration that the pool agreement with respondent remained in effect. Six months later, respondent, in its answer, asserted the unenforceability of the pool agreement on the grounds that American had violated, inter alia, the Securities Act of 1933; Rule 10b-5, promulgated under the Securities Exchange Act of 1934 (hereafter 1934 Act); and the Illinois Securities Act, and counterclaimed for damages on all its defense claims except the one involving Rule 10b-5, which, under the 1934 Act's terms, was exclusively enforceable in the federal courts. Respondent on the same day filed a complaint against American in the Federal District Court for damages for American's alleged Rule 10b-5 violation, and joined therewith claims based on each of the other defensive counts made in the state court action. American moved to dismiss or abate the federal court action, the motion to dismiss being based on the contention that the reinsurance agreement was not a "security" within the meaning of the 1933 or 1934 Act, and the motion to abate being on the ground that the earlier state proceeding included all issues except the one involving Rule 10b-5. Petitioner, the District Court Judge, granted American's motion to defer the federal proceeding until completion of the state proceeding, except the Rule 10b-5 damages claim. He rejected respondent's contention that the District Court should proceed with the entire case because of its exclusive jurisdiction over that claim, and noted that the state court was bound to provide the equitable relief sought by respondent by recognizing a valid Rule 10b-5 claim as a defense to the state action. Petitioner heard argument on, but has not yet decided, the question of whether respondent's interest in the reinsurance pool constituted a "security" as defined in the 1934 Act. After petitioner had rejected motions to reconsider his stay order and refused to certify an interlocutory appeal, respondent petitioned the Court of Appeals for a writ of mandamus directing petitioner to adjudicate Page 437 U. S. 656 the Rule 10b-5 claim. Thereafter, that court, relying on Colorado River Water Conservation Dist. v. United States, 424 U. S. 800, granted the petition and directed petitioner to "proceed immediately with Calvert's claim for damages and equitable relief" under the 1934 Act.Held: The judgment is reversed. Pp. 437 U. S. 661-667; 437 U. S. 667-668.560 F.2d 792, reversed.MR. JUSTICE REHNQUIST, joined by MR. JUSTICE STEWART, MR. JUSTICE WHITE, and MR. JUSTICE STEVENS, concluded:Issuance of the writ of mandamus by the Court of Appeals impermissibly interfered with petitioner's discretion to control his docket. Pp. 437 U. S. 661-667.(a) Though a court of appeals has the power to issue a writ of mandamus directing a district court to proceed to judgment in a pending case when it is the district court's duty to do so, the burden is on the moving party to show that its right to issuance of the writ is "clear and indisputable." P. 437 U. S. 662.(b) Where there is duplicative litigation in the state and federal courts, the decision whether or not to defer to the state courts is largely committed to the discretion of the district court, Brillhart v. Excess Ins. Co., 316 U. S. 491, 316 U. S. 494, even when matters of federal law are involved, Colorado River, supra at 424 U. S. 820. Pp. 437 U. S. 662-664.(c) This case, unlike Colorado River, did not involve outright dismissal of the action, and respondent remained free to urge petitioner to reconsider his decision to defer based on new information as to the progress of the state case; to that extent, deferral (contrary to respondent's argument) was not equivalent to dismissal. Pp. 437 U. S. 664-665.(d) Though a district court's exercise of discretion may be subject to review in a proper interlocutory appeal, it ought not be overridden by a writ of mandamus. Where a matter is committed to a district court's discretion, it cannot be said that a litigant's right to a particular result is "clear and indisputable." Here, petitioner has not heedlessly refused to adjudicate the Rule 10b-5 damages claim (the only issue that may not concurrently be resolved by both the state and federal courts), and, as far as the record shows, his delay in adjudicating that claim is simply the product of a district court's normal excessive workload, compounded by "the unfortunate consequence of making the judge a litigant" in this mandamus proceeding. Ex parte Fahey, 332 U. S. 258, 332 U. S. 260. Pp. 437 U. S. 665-667.MR. JUSTICE BLACKMUN, who is of the view that Brillhart v. Excess Ins. Co., 316 U. S. 491, a diversity case, has no application to this federal issue case, concluded that the issuance of mandamus in this case Page 437 U. S. 657 was premature. The judgment of the Court of Appeals must be reversed because the court should have done no more than require reconsideration by petitioner in light of Colorado River Water Conservation Dist. v. United States, 424 U. S. 800, which was decided after petitioner's stay order. Pp. 437 U. S. 667-668.REHNQUIST, J., announced the Court's judgment and delivered an opinion, in which STEWART, WHITE, and STEVENS, JJ., joined. BLACKMUN, J., filed an opinion concurring in the judgment, post, p. 437 U. S. 667. BURGER, C.J., filed a dissenting opinion, post, p. 437 U. S. 668. BRENNAN, J., filed a dissenting opinion, in which BURGER, C.J., and MARSHALL and POWELL, JJ., joined, post, p. 437 U. S. 668.

1989_88-1775

Justice STEVENS announced the judgment of the Court and delivered an opinion in which Justice BRENNAN, Justice BLACKMUN, and Justice KENNEDY join.The Illinois Supreme Court publicly censured petitioner because his letterhead states that he is certified as a civil trial specialist by the National Board of Trial Advocacy. We Page 496 U. S. 94 granted certiorari to consider whether the statement on his letterhead is protected by the First Amendment. 492 U.S. 917 (1989). [Footnote 1]IThis case comes to us against a background of growing interest in lawyer certification programs. In the 1973 Sonnett Memorial Lecture, then Chief Justice Warren E. Burger advanced the proposition that specialized training and certification of trial advocates is essential to the American system of justice. [Footnote 2] That proposition was endorsed by a number of groups of lawyers [Footnote 3] who were instrumental in establishing the National Board of Trial Advocacy (NBTA) in 1977. Page 496 U. S. 95Since then, NBTA has developed a set of standards and procedures for periodic certification of lawyers with experience and competence in trial work. Those standards, which have been approved by a board of judges, scholars, and practitioners, are objective and demanding. They require specified experience as lead counsel in both jury and nonjury trials, participation in approved programs of continuing legal education, a demonstration of writing skills, and the successful completion of a day-long examination. Certification expires in five years unless the lawyer again demonstrates his or her continuing qualification. [Footnote 4]NBTA certification has been described as a "highly-structured" and "arduous process that employs a wide range of assessment methods." Task Force on Lawyer Competence, Report With Findings and Recommendations to The Conference of Chief Justices, Publication No. NCSC-021, pp. 33-34 (May 26, 1982). After reviewing NBTA.'s procedures, the Supreme Court of Minnesota found that"NBTA applies a rigorous and exacting set of standards and examinations on a national scale before certifying a lawyer as a trial Page 496 U. S. 96 specialist."In re Johnson, 341 N.W.2d 282, 283 (Minn. 1983). The Alabama Supreme Court similarly concluded that"a certification of specialty by NBTA would indicate a level of expertise with regard to trial advocacy in excess of the level of expertise required for admission to the bar generally."Ex parte Nowell, 487 So. 2d 848, 851 (Ala.1986).IIPetitioner practices law in Edwardsville, Illinois. He was licensed to practice in Illinois in 1968, in Arizona in 1979, and in Missouri in 1981. He has served as president of the Madison County Bar Association, and has been active in both national and state bar association work. [Footnote 5] He has tried to verdict over 100 jury trials and over 300 nonjury trials, and has participated in hundreds of other litigated matters that were settled. NBTA issued petitioner a "Certificate in Civil Trial Advocacy" in 1981, renewed it in 1986, and listed him in its 1985 Directory of "Certified Specialists and Board Members." [Footnote 6]Since 1983, petitioner's professional letterhead has contained a statement referring to his NBTA certification and to the three States in which he is licensed. It appears as follows:"Gary E. Peel""Certified Civil Trial Specialist""By the National Board of Trial Advocacy""Licensed: Illinois, Missouri, Arizona [Footnote 7] "Page 496 U. S. 97In 1987, the Administrator of the Attorney Registration and Disciplinary Commission of Illinois (Commission) filed a complaint alleging that petitioner, by use of this letterhead, was publicly holding himself out as a certified legal specialist in violation of Rule 2-105(a)(3) of the Illinois Code of Professional Responsibility. That Rule provides:"A lawyer or law firm may specify or designate any area or field of law in which he or its partners concentrates or limits his or its practice. Except as set forth in Rule 2-105(a), no lawyer may hold himself out as 'certified' or a 'specialist.' [Footnote 8]"The complaint also alleged violations of Rule 2-101(b), which requires that a lawyer's public"communication shall contain all information necessary to make the communication not misleading and shall not contain any false or misleading statement or otherwise operate to deceive,"and of Rule 1-102(a)(1), which generally subjects a lawyer to discipline for violation of any Rule of the Code of Professional Responsibility. Disciplinary Rule 2-101(b), 1102(a)(1) (1988).After a hearing, the Commission recommended censure for a violation of Rule 2-105(a)(3). It rejected petitioner's First Amendment claim that a reference to a lawyer's certification as a specialist was a form of commercial speech that could not Page 496 U. S. 98 be "subjected to blanket suppression.'" Report of the Hearing Panel, App. C to Pet. for Cert. 19a. Although the Commission's "Findings of Facts" did not contain any statement as to whether petitioner's representation was deceptive, its "Conclusion of Law" ended with the brief statement that petitioner,"by holding himself out, on his letterhead as 'Gary E. Peel, Certified Civil Trial Specialist -- By the National Board of Trial Advocacy,' is in direct violation of the above cited Rule [2-105(a)(3)].""We hold it is 'misleading' as our Supreme Court has never recognized or approved any certification process."Id. at 20a.The Illinois Supreme Court adopted the Commission's recommendation for censure. It held that the First Amendment did not protect petitioner's letterhead because the letterhead was misleading in three ways. First, the State Supreme Court concluded that the juxtaposition of the reference to petitioner as "certified" by NBTA and the reference to him as "licensed" by Illinois, Missouri, and Arizona "could" mislead the general public into a belief that petitioner's authority to practice in the field of trial advocacy was derived solely from NBTA certification. It thus found that the statements on the letterhead impinged on the court's exclusive authority to license its attorneys because they failed to distinguish voluntary certification by an unofficial group from licensure by an official organization. In re Peel, 126 Ill. 2d 397, 405-406, 128 Ill.Dec. 535, 538-539, 534 N.E.2d 980, 983-984 (1989).Second, the court characterized the claim of NBTA certification as "misleading because it tacitly attests to the qualifications of [petitioner] as a civil trial advocate." Id. at 406, 128 Ill.Dec. at 539, 534 N.E.2d at 984. The court noted confusion in the parties' descriptions of the NBTA's requirements, [Footnote 9] but did not Page 496 U. S. 99 consider whether NBTA certification constituted reliable, verifiable evidence of petitioner's experience as a civil trial advocate. Rather, the court reasoned that the statement was tantamount to an implied claim of superiority of the quality of petitioner's legal services and therefore warranted restriction under our decision in In re R.M.J., 455 U. S. 191 (1982). 126 Ill. 2d at 406, 128 Ill.Dec. at 539, 534 N.E.2d at 984.Finally, the court reasoned that use of the term "specialist" was misleading because it incorrectly implied that Illinois had formally authorized certification of specialists in trial advocacy. The court concluded that the conjunction of the reference to being a specialist with the reference to being licensed implied that the former was the product of the latter. Id. at 410, 128 Ill.Dec. at 541, 534 N.E.2d at 986. Concluding that the letterhead was inherently misleading for these reasons, the court upheld the blanket prohibition of Rule 2105(a) under the First Amendment.IIIThe Illinois Supreme Court considered petitioner's letterhead as a form of commercial speech governed by the "constitutional limitations on the regulation of lawyer advertising." 126 Ill. 2d at 402, 128 Ill.Dec. at 538, 534 N.E.2d at 982. The only use of the letterhead in the record is in petitioner's correspondence with the Commission itself. Petitioner contends that, absent evidence of any use of the letterhead to propose commercial transactions with potential clients, the statement should be accorded the full protections of noncommercial speech. However, he also acknowledges that "this case can and should be decided on the narrower ground that, even if it is commercial speech, it cannot be categorically prohibited." Tr. of Oral Arg. 9. We agree that the question to be decided Page 496 U. S. 100 is whether a lawyer has a constitutional right, under the standards applicable to commercial speech, to advertise his or her certification as a trial specialist by NBTA.In Bates v. State Bar of Arizona, 433 U. S. 350 (1977), this Court decided that advertising by lawyers was a form of commercial speech entitled to protection by the First Amendment. Justice Powell summarized the standards applicable to such claims for the unanimous Court in In re R.M.J., 455 U. S. 191 (1982):"Truthful advertising related to lawful activities is entitled to the protections of the First Amendment. But when the particular content or method of the advertising suggests that it is inherently misleading or when experience has proved that in fact such advertising is subject to abuse, the States may impose appropriate restrictions. Misleading advertising may be prohibited entirely. But the States may not place an absolute prohibition on certain types of potentially misleading information, e.g., a listing of areas of practice, if the information also may be presented in a way that is not deceptive. . . . ""Even when a communication is not misleading, the State retains some authority to regulate. But the State must assert a substantial interest and the interference with speech must be in proportion to the interest served."Id. at 455 U. S. 203 (emphasis added). In this case we must consider whether petitioner's statement was misleading and, even if it was not, whether the potentially misleading character of such statements creates a state interest sufficiently substantial to justify a categorical ban on their use.The facts stated on petitioner's letterhead are true and verifiable. It is undisputed that NBTA has certified petitioner as a civil trial specialist and that three States have licensed him to practice law. There is no contention that any Page 496 U. S. 101 potential client or person was actually misled or deceived by petitioner's stationery. Neither the Commission nor the State Supreme Court made any factual finding of actual deception or misunderstanding, but rather concluded, as a matter of law, that petitioner's claims of being "certified" as a "specialist" were necessarily misleading absent an official state certification program. Notably, although petitioner was originally charged with a violation of Disciplinary Rule 2101(b), which aims at misleading statements by an attorney, his letterhead was not found to violate this rule.In evaluating petitioner's claim of certification, the Illinois Supreme Court focused not on its facial accuracy, but on its implied claim "as to the quality of [petitioner's] legal services," and concluded that such a qualitative claim "might be so likely to mislead as to warrant restriction.'" 126 Ill. 2d at 406, 128 Ill.Dec. at 540, 534 N.E.2d at 984 (quoting In re R.M.J., 455 U.S. at 455 U. S. 201). This analysis confuses the distinction between statements of opinion or quality and statements of objective facts that may support an inference of quality. A lawyer's certification by NBTA is a verifiable fact, as are the predicate requirements for that certification. Measures of trial experience and hours of continuing education, like information about what schools the lawyer attended or his or her bar activities, are facts about a lawyer's training and practice. A claim of certification is not an unverifiable opinion of the ultimate quality of a lawyer's work or a promise of success, cf. In re R.M.J., 455 U.S. at 455 U. S. 201, n. 14, but is simply a fact, albeit one with multiple predicates from which a consumer may or may not draw an inference of the likely quality of an attorney's work in a given area of practice. [Footnote 10] Page 496 U. S. 102We must assume that some consumers will infer from petitioner's statement that his qualifications in the area of civil trial advocacy exceed the general qualifications for admission to a state bar. Thus if the certification had been issued by an organization that had made no inquiry into petitioner's fitness, or by one that issued certificates indiscriminately for a price, the statement, even if true, could be misleading. In this case, there is no evidence that a claim of NBTA certification suggests any greater degree of professional qualification than reasonably may be inferred from an evaluation of its rigorous requirements. Much like a trademark, the strength of a certification is measured by the quality of the organization for which it stands. The Illinois Supreme Court merely notes some confusion in the parties' explanation of one of those requirements. See n 9, supra. We find NBTA standards objectively clear, and, in any event, do not see why the degree of uncertainty identified by the State Supreme Court would make the letterhead inherently misleading to a consumer. A number of other States have their own certification plans and expressly authorize references to specialists and certification, [Footnote 11] but there is no evidence that the consumers Page 496 U. S. 103 in any of these States are misled if they do not inform themselves of the precise standards under which claims of certification are allowed.Nor can we agree with the Illinois Supreme Court's somewhat contradictory fears that juxtaposition of the references to being "certified" as a "specialist" with the identification of the three States in which petitioner is "licensed" conveys, on the one hand, the impression that NBTA had the authority to grant those licenses and, on the other, that the NBTA certification was the product of official state action. The separate character of the two references is plain from their texts: one statement begins with the verb "[c]ertified" and identifies the source as the "National Board of Trial Advocacy," while the second statement begins with the verb "[l]icensed" and identifies States as the source of licensure. The references are further distinguished by the fact that one is indented below petitioner's name while the other uses the same margin as his name. See supra, at 496 U. S. 96. There has been no finding that any person has associated certification with governmental action -- state or federal -- and there is no basis for belief that petitioner's representation generally would be so construed.We are satisfied that the consuming public understands that licenses -- to drive cars, to operate radio stations, to sell liquor -- are issued by governmental authorities and that a host of certificates -- to commend job performance, to convey an educational degree, to commemorate a solo flight or a hole in one -- are issued by private organizations. The dictionary definition of "certificate," from which the Illinois Page 496 U. S. 104 Supreme Court quoted only excerpts, comports with this common understanding:"[A] document issued by a school, a state agency, or a professional organization certifying that one has satisfactorily completed a course of studies, has passed a qualifying examination, or has attained professional standing in a given field and may officially practice or hold a position in that field."Webster's Third New International Dictionary 367 (1986 ed.) (emphasis added to portions omitted from 126 Ill. 2d at 405, 128 Ill. Dec. at 539, 534 N.E.2d at 984).The court relied on a similarly cramped definition of "specialist," turning from Webster's -- which contains no suggestion of state approval of "specialists" -- to the American Bar Association's Comment to Model Rule 7.4, which prohibits a lawyer from stating or implying that he is a "specialist" except for designations of patent, admiralty, or state-designated specialties. The Comment to the Rule concludes that the terms "specialist" and "specialty" "have acquired a secondary meaning implying formal recognition as a specialist and, therefore, use of these terms is misleading" in States that have no formal certification procedures. ABA Model Rule of Professional Conduct 7.4 and Comment (1989). We appreciate the difficulties that evolving standards for attorney certification present to national organizations like the ABA. [Footnote 12] However, it seems unlikely that petitioner's statement Page 496 U. S. 105 about his certification as a "specialist" by an identified national organization necessarily would be confused with formal state recognition. The Federal Trade Commission, which has a long history of reviewing claims of deceptive advertising, fortifies this conclusion with its observation that"one can readily think of numerous other claims of specialty -- from 'air conditioning specialist' in the realm of home repairs to 'foreign car specialist' in the realm of automotive repairs -- that cast doubt on the notion that the public would automatically mistake a claim of specialization for a claim of formal recognition by the State."Brief for Federal Trade Commission as Amicus Curiae 24.We reject the paternalistic assumption that the recipients of petitioner's letterhead are no more discriminating than the audience for children's television. Cf. Bolger v. Youngs Drug Products Corp., 463 U. S. 60, 463 U. S. 74 (1983). [Footnote 13] The two Page 496 U. S. 106 state courts that have evaluated lawyers' advertisements of their certifications as civil trial specialists by NBTA have concluded that the statements were not misleading or deceptive on their face, and that, under our recent decisions, they were protected by the First Amendment. Ex parte Howell, 487 So. 2d 848 (Ala.1986); In re Johnson, 341 N.W.2d 282 (Minn.1983). Given the complete absence of any evidence of deception in the present case, we must reject the contention that petitioner's letterhead is actually misleading.IVEven if petitioner's letterhead is not actually misleading, the Commission defends Illinois' categorical prohibition against lawyers' claims of being "certified" or a "specialist" on the assertion that these statements are potentially misleading. In the Commission's view, the State's interest in avoiding any possibility of misleading some consumers with such communications is so substantial that it outweighs the cost of providing other consumers with relevant information about lawyers who are certified as specialists. See Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York, 447 U. S. 557, 447 U. S. 566 (1980).We may assume that statements of "certification" as a "specialist," even though truthful, may not be understood fully by some readers. However, such statements pose no greater potential of misleading consumers than advertising Page 496 U. S. 107 admission to "Practice before: The United States Supreme Court," In re R.M.J., 455 U. S. 191 (1982), [Footnote 14] of exploiting the audience of a targeted letter, Shapero v. Kentucky Bar Assn., 486 U. S. 466 (1988), or of confusing a reader with an accurate illustration, Zauderer v. Office of Disciplinary Counsel, 471 U. S. 626 (1985). In this case, as in those, we conclude that the particular State rule restricting lawyers' advertising is "broader than reasonably necessary to prevent the perceived evil." Shapero, 486 U.S. at 486 U. S. 472 (quoting In re R.M.J., 455 U.S. at 455 U. S. 203). Cf. Ohralik v. Ohio State Bar Assn., 436 U. S. 447 (1978) (restricting in-person solicitation). [Footnote 15] The need for a complete prophylactic against any claim of specialty is undermined by the fact that use of titles such as "Registered Patent Attorney" and "Proctor in Admiralty," which are permitted under Rule 2-105(a)'s exceptions, produces the same risk of deception. Page 496 U. S. 108Lacking empirical evidence to support its claim of deception, the Commission relies heavily on the inherent authority of the Illinois Supreme Court to supervise its own bar. Justice O'CONNOR's dissent urges that "we should be more deferential" to the State, asserting without explanation that "the Supreme Court of Illinois is in a far better position than is this Court to determine which statements are misleading or likely to mislead." [Footnote 16] Whether the inherent character of a statement places it beyond the protection of the First Amendment is a question of law over which Members of this Court should exercise de novo review. Cf. Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485, 466 U. S. 498-511 (1984). That the judgment below is by a State Supreme Court exercising review over the actions of its State Bar Commission does not insulate it from our review for constitutional infirmity. See, e.g., Baird v. State Bar of Arizona, 401 U. S. 1 (1971). The Commission's authority is necessarily constrained by the First Amendment to the Federal Constitution, and specifically by the principle that disclosure of truthful, relevant information is more likely to make a positive contribution to decisionmaking than is concealment of such information. Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 425 U. S. 770 (1976); Page 496 U. S. 109 Central Hudson Gas & Electric Corp., 447 U.S. at 447 U. S. 562. Even if we assume that petitioner's letterhead may be potentially misleading to some consumers, that potential does not satisfy the State's heavy burden of justifying a categorical prohibition against the dissemination of accurate factual information to the public. In re R.M.J., 455 U.S. at 455 U. S. 203.The presumption favoring disclosure over concealment is fortified in this case by the separate presumption that members of a respected profession are unlikely to engage in practices that deceive their clients and potential clients. As we noted in Bates v. State Bar of Arizona, 433 U. S. 350, 433 U. S. 379 (1977):"It is at least somewhat incongruous for the opponents of advertising to extol the virtues and altruism of the legal profession at one point, and, at another, to assert that its members will seize the opportunity to mislead and distort."We do not ignore the possibility that some unscrupulous attorneys may hold themselves out as certified specialists when there is no qualified organization to stand behind that certification. A lawyer's truthful statement that "XYZ Board" has "certified" him as a "specialist in admiralty law" would not necessarily be entitled to First Amendment protection if the certification was a sham. States can require an attorney who advertises "XYZ certification" to demonstrate that such certification is available to all lawyers who meet objective and consistently applied standards relevant to practice in a particular area of the law. There has been no showing -- indeed no suggestion -- that the burden of distinguishing between certifying boards that are bona fide and those that are bogus would be significant, or that bar associations and official disciplinary committees cannot police deceptive practices effectively. Cf. Shapero, 486 U.S. at 486 U. S. 477 ("The record before us furnishes no evidence that scrutiny of targeted solicitation letters will be appreciably more burdensome or less reliable than scrutiny of advertisements"). Page 496 U. S. 110"If the naivete of the public will cause advertising by attorneys to be misleading, then it is the bar's role to assure that the populace is sufficiently informed as to enable it to place advertising in its proper perspective."Bates, 433 U.S. at 433 U. S. 375. To the extent that potentially misleading statements of private certification or specialization could confuse consumers, a State might consider screening certifying organizations or requiring a disclaimer about the certifying organization or the standards of a specialty. In re R.M.J., 455 U.S. at 455 U. S. 201-203. [Footnote 17] A State may not, however, completely ban statements that are not actually or inherently misleading, such as certification as a specialist by bona fide organizations such as NBTA. Cf. In re Johnson, 341 N.W.2d at 283 (striking down the Disciplinary Rule that prevented statements of being "a specialist unless and until the Minnesota Supreme Court adopts or authorizes rules or regulations permitting him to do so'"). Information about certification and specialties facilitates the consumer's access to legal services, and thus better serves the administration of justice. [Footnote 18]Petitioner's letterhead was neither actually nor inherently misleading. There is no dispute about the bona fides and the Page 496 U. S. 111 relevance of NBTA certification. The Commission's concern about the possibility of deception in hypothetical cases is not sufficient to rebut the constitutional presumption favoring disclosure over concealment. Disclosure of information such as that on petitioner's letterhead both serves the public interest and encourages the development and utilization of meritorious certification programs for attorneys. As the public censure of petitioner for violating Rule 2-105(a)(3) violates the First Amendment, the judgment of the Illinois Supreme Court is reversed and the case is remanded for proceedings not inconsistent with this opinion.It is so ordered

U.S. Supreme CourtPeel v. Attorney Disc. Comm'n, 496 U.S. 91 (1990)Peel v. Attorney Registration and Disciplinary Commission of IllinoisNo. 88-1775Argued Jan. 17, 1990Decided June 4, 1990496 U.S. 91SyllabusPetitioner Peel is licensed to practice law in Illinois and other States. He also has a "Certificate in Civil Trial Advocacy" from the National Board of Trial Advocacy (NBTA), which offers periodic certification to applicants who meet exacting standards of experience and competence in trial work. The Administrator of respondent Attorney Registration and Disciplinary Commission of Illinois filed a complaint alleging that Peel, by using professional letterhead that stated his name, followed by the indented notation "Certified Civil Trial Specialist By the [NBTA]" and the unindented notation "Licensed: Illinois, Missouri, Arizona," was, inter alia, holding himself out as a certified legal specialist in violation of Rule 2-105(a)(3) of the Illinois Code of Professional Responsibility. The Commission recommended censure. The State Supreme Court adopted the Commission's recommendation, concluding that the First Amendment did not protect the letterhead because the public could confuse the State and NBTA as the sources of his license to practice and of his certification, and because the certification could be read as a claim of superior quality.Held: The judgment is reversed, and the case is remanded.126 Ill. 2d 397, 128 Ill.Dec. 535, 534 N.E.2d 980 (1989), reversed and remanded.Justice STEVENS, joined by Justice BRENNAN, Justice BLACKMUN, and Justice KENNEDY, concluded that a lawyer has a constitutional right, under the standards applicable to commercial speech, to advertise his or her certification as a trial specialist by NBTA. Pp. 496 U. S. 99-111.(a) Truthful advertising related to lawful activities is entitled to First Amendment protections. Although a State may prohibit misleading advertising entirely, it may not place an absolute prohibition on potentially misleading information if the information may also be presented in a way that is not deceptive. In re R.M.J., 455 U. S. 191. Pp. 496 U. S. 99-100.(b) Peel's letterhead is not actually or inherently misleading. The facts stated on his letterhead are true and verifiable, and there has been no finding of actual deception or misunderstanding. The state court's focus on the implied "claim" as to the "quality" of Peel's legal services confuses the distinction between statements of opinion or quality and statements of objective facts that may support an inference of quality. Even if NBTA standards are not well known, there is no evidence that Page 496 U. S. 92 consumers, such as those in States with certification plans, are misled if they do not inform themselves of the precise standards of certification. There also has been no finding, and there is no basis for the belief, that Peel's representation generally would be associated with governmental action. The public understands that licenses are issued by governmental authorities and that many certificates are issued by private organizations, and it is unlikely that the public necessarily would confuse certification as a "specialist" by a national organization with formal state recognition. Moreover, other States that have evaluated lawyers' advertisements of NBTA certifications have concluded that they were not misleading and were protected by the First Amendment. Pp. 496 U. S. 101-106.(c) The State's interest in avoiding any potential that Peel's statements might mislead is insufficient to justify a categorical ban on their use; nor does the State Supreme Court's inherent authority to supervise its own bar insulate its judgment from this Court's review for constitutional infirmity. The need for a complete prophylactic rule against any claim of certification or specialty is undermined by the fact that the same risk of deception is posed by specified designations -- for "Registered Patent Attorney" and "Proctor in Admiralty" -- that are permitted under Rule 2-105(a). Such information facilitates the consumer's access to legal services and better serves the administration of justice. To the extent that such statements could confuse consumers, the State might consider screening certifying organizations or requiring a disclaimer about the certifying organization or the standards of a specialty. Pp. 496 U. S. 106-111.Justice MARSHALL, joined by Justice BRENNAN, agreeing that the State may not prohibit Peel from holding himself out as a certified NBTA trial specialist because the letterhead is neither actually nor inherently misleading, concluded that the letterhead is potentially misleading and thus the State may enact regulations other than a total ban to ensure that the public is not misled by such representations. The letterhead is potentially misleading because NBTA's name could give the impression to nonlawyers that the organization is a federal government agency; the juxtaposition of the references to Peel's state licenses to practice law and to his certification by the NBTA may lead individuals to believe that the NBTA is somehow sanctioned by the States; and the reference to NBTA certification may cause people to think that Peel is necessarily a better trial lawyer than attorneys without certification, because facts as well as opinions may be misleading when they are presented without adequate information. A State could require a lawyer to provide additional information in order to prevent a claim of NBTA certification from being misleading. A State may require, for example, that the letterhead include a disclaimer stating that the NBTA is a private organization not affiliated with or sanctioned by the State or Federal Government, or Page 496 U. S. 93 information about NBTA's requirements for certification so that any inferences drawn by consumers about the certified attorney's qualifications would be based on more complete knowledge of the meaning of NBTA certification. Each State may decide for itself, within First Amendment constraints, how best to prevent such claims from being misleading. Pp. 496 U. S. 111-117.STEVENS, J., announced the judgment of the Court and delivered an opinion, in which BRENNAN, BLACKMUN, and KENNEDY, JJ., joined. MARSHALL, J., filed an opinion concurring in the judgment, in which BRENNAN, J., joined, post, p. 496 U. S. 111. WHITE, J., filed a dissenting opinion, post, p. 496 U. S. 118. O'CONNOR, J., filed a dissenting opinion, in which REHNQUIST, C.J., and SCALIA, J., joined, post, p. 496 U. S. 119.

1973_72-1061

MR. JUSTICE REHNQUIST delivered the opinion of the Court.Petitioners are the owners and managing agents of two ships which are registered under the laws of Liberia and fly the Liberian flag. They sought injunctive relief in the state courts in Texas to bar picketing of their vessels by respondent unions. The trial court denied relief, finding that the dispute was "arguably" within the jurisdiction of the National Labor Relations Board and that the jurisdiction of the state courts was therefore preempted. The Texas Court of Civil Appeals affirmed, [Footnote 1] and we granted certiorari, 412 U.S. 927 (1973), to consider whether the activities here complained of were activities "affecting commerce" within the meaning of §§ 2(6) and (7) of the National Labor Relations Act, 49 Stat. 450, 29 U.S.C. §§ 152(6) and (7). [Footnote 2] We hold that they were Page 415 U. S. 106 not, and therefore reverse the judgment of the Court of Civil Appeals.IThe vessels Northwind and Theomana are ships of Liberian registry, carrying cargo between foreign ports and the United States. Northwind is owned by petitioner Westwind Africa Line, Ltd., a Liberian corporation, while Theomana is owned by petitioner SPS Bulkcarriers Corp., a Liberian corporation, and managed by petitioner Windward Shipping (London) Ltd., a British corporation. The crews of both vessels are composed entirely of foreign nationals, represented by foreign unions and employed under foreign articles of agreement.Respondents are American maritime unions, apparently representing a substantial majority of American merchant seamen. [Footnote 3] Alarmed by an accelerating decline in the number of jobs available to their members, these unions agreed to undertake collective action against foreign vessels, which they saw as the major cause of their business recession. Specifically, these unions agreed to picket foreign ships, calling attention to the competitive advantage enjoyed by such vessels because of a difference Page 415 U. S. 107 between foreign and domestic seamen's wages. All parties concede that such a difference does exist. [Footnote 4]The picketing here occurred at the Port of Houston, Texas, in October, 1971. Both Northwind and Theomana were docked within the port, and respondents established picket lines in front of each vessel. There were four pickets assigned to each vessel, carrying signs which read:ATTENTION TO THE PUBLICTHE WAGES AND BENEFITS PAID SEAMENABOARD THE VESSEL THEOMANA [NORTHWIND]ARE SUBSTANDARD TO THOSE OF AMERICANSEAMEN. THIS RESULTS IN EXTREME DAMAGETO OUR WAGE STANDARDS AND LOSS OF OUR JOBS.PLEASE DO NOT PATRONIZE THIS VESSEL.HELP THE AMERICAN SEAMEN.WE HAVE NO DISPUTE WITHANY OTHER VESSEL ON THIS SITE.[Printed names of the six unions.]These signs were supplemented by pamphlets of similar import. [Footnote 5] The pickets were instructed not to Page 415 U. S. 108 discuss the picketing with anyone, and they appear to have followed their instructions.The picketing, although neither obstructive nor violent, was not without effect. Longshoremen and other port workers refused to cross the picket lines to load and unload petitioners' vessels. Petitioners filed separate suits in a Texas state court, asking the court to enjoin the picketing as tortious under Texas law. The primary basis for petitioners' claim was that the picketing sought to induce the owners and crews to break preexisting contracts. Respondents presented several defenses, contending in particular that the jurisdiction of the Texas court was preempted by the National Labor Relations Act. [Footnote 6]The trial court sustained this contention, holding that jurisdiction properly lay with the NLRB, and the Texas Court of Civil Appeals affirmed. That court found that state jurisdiction was preempted by the Act when "the activities complained of are arguably either protected by section 7 or prohibited by section 8 of the NLRA as amended by the LMRA," [Footnote 7] see San Diego Building Trades Council v. Garmon, 359 U. S. 236 (1959), and that the conduct here met that test. The court rejected petitioners' argument that the picketing interfered with the "maritime operations of foreign flag Page 415 U. S. 109 ships," see McCulloch v. Sociedad Nacional, 372 U. S. 10 (1963), in such manner as to remove it from the Board's jurisdiction. [Footnote 8] The court concluded:"If [the picketing] but voices a complaint as to foreign wages and urges the public not to patronize foreign vessels, it does not engage in matters outside of commerce. It is peaceful picketing, publicizing a labor dispute, of such a character that its validity is suggested by the Court's holding in the Marine Cooks case, supra. It is, at least arguably, a protected activity under section 7 of the LMRA. As such, it is an activity as to which the exclusive jurisdiction to determine its propriety has been preempted to the NLRB. [Footnote 9]"Petitioners contend that the Court of Appeals too narrowly construed this Court's decisions denying the NLRB jurisdiction in cases involving foreign flag ships. We therefore begin by examining the principles established by those decisions for determining the jurisdiction of the NLRB.IIIn a series of cases decided over the past 17 years, [Footnote 10] this Court has discussed the application of the Labor Management Relations Act in situations which might be broadly described as disputes between unions representing workers in this country and owners of foreign flag vessels operating in international maritime commerce. Benz v. Compania Naviera Hidalgo, 353 U. S. 138 (1957), is the leading case on the subject. In Benz, Page 415 U. S. 110 the question was whether the Labor Management Relations Act, 1947, precluded a diversity suit for damages brought in the United States District Court by foreign shipowners against picketing American unions. The picketing had been undertaken in Portland, Oregon, to support striking foreign crews employed under foreign articles and had resulted in the refusal of workers to load and repair the docked foreign ships. The District Court had awarded damages, and the Court of Appeals affirmed.This Court held that the shipowners' action was not preempted by the Labor Management Relations Act. Studying the legislative history of the Act, the Court found no indication that it was intended to govern disputes between foreign shipowners and foreign crews. On the contrary, the Court concluded that the most revealing legislative history strongly suggested the bill was a "bill of rights . . . for American workingmen and for their employers." Id. at 353 U. S. 144. (Emphasis in original.) The Court stated that this history "inescapably describes the boundaries of the Act as including only the workingmen of our own country and its possessions." Ibid.Recognition of the clear congressional purpose to apply the LMRA only to American workers and employers was doubtless a sufficient reason to place the picketing in Benz outside the Act. But the Court in that case made clear its reluctance to intrude domestic labor law willy-nilly into the complex of considerations affecting foreign trade, absent a clear congressional mandate to do so:"For us to run interference in such a delicate field of international relations, there must be present the affirmative intention of the Congress clearly expressed. It alone has the facilities necessary to make fairly such an important policy decision where the Page 415 U. S. 111 possibilities of international discord are so evident and retaliative action so certain."Id. at 353 U. S. 147. In the 17 years since Benz was decided, Congress has in no way indicated any such "affirmative intention," and this Court has continued to construe the LMRA in accordance with the dictates of that case.The reasoning of Benz was reaffirmed in McCulloch v. Sociedad Nacional, 372 U. S. 10 (1963), and Incres S.S. Co. v. Maritime Workers, 372 U. S. 24 (1963), decided together six years later. In McCulloch, we held that the National Labor Relations Board had improperly assumed jurisdiction under the Act to order an election involving foreign crews of foreign flag ships. Rejecting the Board's "balancing of contacts" theory, the Court said:"[T]o follow such a suggested procedure to the ultimate might require that the Board inquire into the internal discipline and order of all foreign vessels calling at American ports."372 U.S. at 372 U. S. 19. [Footnote 11] In Incres, we applied this rationale to a situation involving union picketing of a foreign ship in an effort to organize the foreign crew. Reversing the holding of a New York state court that the picketing was arguably within the jurisdiction of the NLRB, the Court said:"The Board's jurisdiction to prevent unfair labor practices, like its jurisdiction to direct elections, is based upon circumstances 'affecting commerce,' and we have concluded that maritime operations of foreign flag ships employing alien seamen are not in 'commerce' within the meaning of § 2(6), 29 U.S.C. § 152(6)."372 U.S. at 372 U. S. 27. Page 415 U. S. 112But Benz and its successor cases have not been read to exempt all organizational activities from the Act's protections merely because those activities in some way were directed at an employer who was the owner of a foreign flag vessel docked in an American port. In Longshoremen v. Ariadne Co., 397 U. S. 195 (1970), the Court held that the picketing of foreign ships to protest substandard wages paid by their owners to nonunion American longshoremen was"in 'commerce' within the meaning of § 2(6), and thus might have been subject to the regulatory power of the National Labor Relations Board."Id. at 397 U. S. 200. The pickets in Ariadne, unlike the pickets in Benz or Incres, were primarily engaged in a dispute as to whether an employer should hire unionized or nonunionized American workers to perform longshoremen's work, [Footnote 12] and the substandard wages which they were protesting were being paid to fellow American workers. The Court specifically noted: "[T]his dispute centered on the wages to be paid American residents." Id. at 387 U. S. 199. The term "in commerce," as used in the LMRA, is obviously not self-defining, and certainly the activities in Benz, McCulloch, and Incres, held not covered by the Act, were literally just as much "in commerce" as were the activities held covered in Ariadne. Those cases which deny jurisdiction to the NLRB recognize that Congress, when it used the words "in commerce" in the LMRA, simply did not intend that Act to erase longstanding Page 415 U. S. 113 principles of comity and accommodation in international maritime trade. In Lauritzen v. Larsen, 345 U. S. 571, 345 U. S. 577 (1953), the Court commented on the congressional intent with respect to the Jones Act of 1920 in these words:"But Congress in 1920 wrote these all-comprehending words not on a clean slate, but as a postscript to a long series of enactments governing shipping. All were enacted with regard to a seasoned body of maritime law developed by the experience of American courts long accustomed to dealing with admiralty problems in reconciling our own with foreign interests and in accommodating the reach of our own laws to those of other maritime nations. [Footnote 13]"We are even more reluctant to attribute to Congress an intention to disrupt this comprehensive body of law by construction of an Act unrelated to maritime commerce and directed solely at American labor relations.IIIThe picketing activities in this case do not involve the inescapable intrusion into the affairs of foreign ships that was present in Benz and Incres; respondents seek Page 415 U. S. 114 neither to organize the foreign crews for purpose of representation nor to support foreign crews in their own wage dispute with a foreign shipowner. But those cases do not purport to fully delineate the threshold of interference with the maritime operations of foreign vessels which makes the LMRA inapplicable.The picket signs utilized at the docks where the Northwind and Theomana were tied up protested the wages paid to foreign seamen who were employed by foreign shipowners under contracts made outside the United States. At the very least, the pickets must have hoped to exert sufficient pressure so that foreign vessels would be forced to raise their operating costs to levels comparable to those of American shippers, either because of lost cargo resulting from the longshoremen's refusal to load or unload the vessels or because of wage increases awarded as a virtual self-imposed tariff to regain entry to American ports. Such a large-scale increase in operating costs would have more than a negligible impact on the "maritime operations" of these foreign ships, and the effect would be by no means limited to costs incurred while in American ports. Unlike Ariadne, the protest here could not be accommodated by a wage decision on the part of the shipowners which would affect only wages paid within this country.In this situation, the foreign vessels' lot is not a happy one. A decision by the foreign owners to raise foreign seamen's wages to a level mollifying the American pickets would have the most significant and far-reaching effect on the maritime operations of these ships throughout the world. A decision to boycott American ports in order to avoid the difficulties induced by the picketing would be detrimental not only to the private balance sheets of the foreign shipowners, but to the citizenry of a country as dependent on goods carried in foreign bottoms as is ours. Retaliatory action against American vessels in Page 415 U. S. 115 foreign ports might likewise be considered, but the employment of such tactics would probably exacerbate and broaden the present dispute. Virtually none of the predictable responses of a foreign shipowner to picketing of this type, therefore, would be limited to the sort of wage-cost decision benefiting American workingmen which the LMRA was designed to regulate. This case, therefore, falls under Benz, rather than under Ariadne. [Footnote 14]Since we hold that respondents' picketing was not "in commerce" as defined by the Act, we do not reach the question of whether the activity was otherwise of such a nature that state courts would be precluded by the LMRA from entertaining an action to enjoin it. Our conclusion that the activities here involved were not "in commerce" within the meaning of §§ 2(6) and (7) of the NLRA, as amended by the LMRA, resolves a question which, of course, is one for the courts in the first instance. Ariadne, 397 U.S. at 397 U. S. 200. The Court of Civil Appeals was therefore wrong in holding that the courts of the Page 415 U. S. 116 State of Texas were prevented by the LMRA from entertaining petitioners' suit for an injunction.Reversed

U.S. Supreme CourtWindward Shipping v. American Radio Assn., 415 U.S. 104 (1974)Windward Shipping (London) Ltd. v.American Radio Association, AFL-CIONo. 72-1061Argued December 3-4, 1973Decided February 19, 1974415 U.S. 104SyllabusPetitioners, foreign-flag shipowners and agents, sought injunctive relief in the Texas state courts to bar, as tortious under Texas law, the picketing of their vessels by respondent unions, which were protesting as substandard the wages paid to the foreign crewmen, who manned the vessels. The trial court sustained respondents' contention that state court jurisdiction was preempted by the Labor Management Relations Act (LMRA), and the appellate court affirmed.Held: Respondents' activities, which did not involve wages paid within this country, but were designed to force the foreign vessels to raise their operating costs to levels comparable to those of American shippers, would have materially affected the foreign ships' "maritime operations" and precipitated responses by the foreign shipowners in the field of international relations transcending the domestic wage-cost decision that the LMRA was designed to regulate. Respondents' picketing was consequently not activity "affecting commerce" as defined in §§ 2(6) and (7) of the National Labor Relations Act, as amended by the LMRA, and the Texas courts erred in holding that they were prevented by the LMRA from entertaining petitioners' injunction suit. Benz v. Compania Naviera Hidalgo, 353 U. S. 138, followed; Longshoremen v. Ariadne Co., 397 U. S. 195, distinguished. Pp. 415 U. S. 109-116482 S.W.2d 675, reversed.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, STEWART, BLACKMUN, and POWELL, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which DOUGLAS and MARSHALL, JJ., joined, post, p. 415 U. S. 116. Page 415 U. S. 105

1972_71-6481

MR. JUSTICE REHNQUIST delivered the opinion of the Court.We are called upon to determine the effect of Rule 12(b)(2) of the Federal Rules of Criminal Procedure on a post-conviction motion for relief which raises for the first time a claim of unconstitutional discrimination in the composition of a grand jury. An indictment was returned in the District Court charging petitioner Davis, a Negro, and two white men with entry into a federally insured bank with intent to commit larceny in violation of 18 U.S.C. §§ 2 and 2113(a). Represented by appointed counsel, [Footnote 1] petitioner entered a not guilty plea at his arraignment and was given 30 days within which to file pretrial motions. He timely moved to quash his indictment on the ground that it was the result of an illegal arrest, but made no other pretrial motions relating to the indictment.On the opening day of the trial, following voir dire of the jury, the District Judge ruled on petitioner's pretrial motions in chambers and ordered that the motion to quash on the illegal arrest ground be carried with the case. He then asked twice if there were anything else before commencing trial. Petitioner was convicted and Page 411 U. S. 235 sentenced to 14 years' imprisonment. His conviction was affirmed on appeal. 409 F.2d 1095 (CA5 1969).Post-conviction motions were thereafter filed and denied, but none dealt with the issue presented in this case. Almost three years after his conviction, petitioner filed the instant motion to dismiss the indictment, pursuant to 28 U.S.C. § 2255, alleging that the District Court had acquiesced in the systematic exclusion of qualified Negro jurymen by reason of the use of a "key man" system of selection, [Footnote 2] an asserted violation of the"mandatory requirement of the statute laws set forth . . . in title 28, U.S.C.A. Section 1861, 1863, 1864, and the 5th amendment of the United States Constitution. [Footnote 3]"His challenge only went to the composition of the grand jury, and did not include the petit jury which found him guilty. The District Court, though it took no evidence on the motion, invited additional briefs on the issue of waiver. It then denied the motion. In its memorandum opinion, it relied on Shotwell Mfg. Co. v. United States, 371 U. S. 341 (1963), and concluded that petitioner had waived his right to object to the composition of the grand jury because such a contention is waived under Rule 12(b)(2) unless raised by motion prior to trial. Also, since the "key man" method of selecting grand jurors had been openly followed for many years prior to petitioner's indictment, since the same grand jury that indicted petitioner indicted his two white accomplices, and since the Page 411 U. S. 236 case against petitioner was "a strong one," the court determined that there was nothing in the facts of the case or in the nature of the claim justifying the exercise of the power to grant relief under Rule 12(b)(2) for "cause shown."The Court of Appeals affirmed on the basis of Shotwell, supra, and Rule 12(b)(2). Because its decision is contrary to decisions of the Ninth Circuit in Fernandez v. Meier, 408 F.2d 974 (1969), and Chee v. United States, 449 F.2d 747 (1971), we granted certiorari to resolve the conflict.Petitioner contends that, because his § 2255 motion alleged deprivation of a fundamental constitutional right, one which has been recognized since Strauder v. West Virginia, 100 U. S. 303 (1880), his case is controlled by this Court's dispositions of Kaufman v. United States, 394 U. S. 217 (1969), and Sanders v. United States, 373 U. S. 1 (1963), rather than Shotwell Mfg. Co. v. United States, supra, and Rule 12(b)(2). Accordingly, he urges that his collateral attack on his conviction may be precluded only after a hearing in which it is established that he "deliberately bypassed" or "understandingly and knowingly" waived his claim of unconstitutional grand jury composition. See Fay v. Noia, 372 U. S. 391 (1963), and Johnson v. Zerbst, 304 U. S. 458 (1938).IRule 12(b)(2) provides in pertinent part that"[d]efenses and objections based on defects in the institution of the prosecution or in the indictment . . . may be raised only by motion before trial,"and that failure to present such defenses or objections "constitutes a waiver thereof, but the court for cause shown may grant relief from the waiver." By its terms, it applies to both procedural and constitutional defects in the institution of prosecutions which do not affect the jurisdiction of the Page 411 U. S. 237 trial court. According to the Notes of the Advisory Committee on Rules, the waiver provision was designed to continue existing law, which, as exemplified by this Court's decision in United States v. Gale, 109 U. S. 65 (1883), was, inter alia, that defendants who pleaded to an indictment and went to trial without making any nonjurisdictional objection to the grand jury, even one unconstitutionally composed, waived any right of subsequent complaint on account thereof. Not surprisingly, therefore, the Advisory Committee's Notes expressly indicate that claims such as petitioner's are meant to be within the Rule's purview:"These two paragraphs [12(b)(1) and (2)] classify into two groups all objections and defenses to be interposed by motion prescribed by Rule 12(a). In one group are defenses and objections which must be raised by motion, failure to do so constituting a waiver. . . ."". . . Among the defenses and objections in this group are the following: illegal selection or organization of the grand jury. . . ."Notes of Advisory Committee following Fed.Rule Crim.Proc. 12, 18 U.S.C.App.This Court had occasion to consider the Rule's application in Shotwell Mfg. Co. v. United States, supra, a case involving tax evasion convictions. In a motion filed more than four years after their trial, but before the conclusion of direct review, petitioners alleged that both the grand and petit jury arrays were illegally constituted because, inter alia, "the Clerk of the District Court failed to employ a selection method designed to secure a cross-section of the population." [Footnote 4] 371 U.S. at 371 U. S. 361-362. Page 411 U. S. 238 Deeming the case controlled by Rule 12(b)(2), the District Court held a hearing to determine whether there was "cause" warranting relief from the waiver provision, and it found that"the facts concerning the selection of the grand and petit juries were notorious, and available to petitioners in the exercise of due diligence before the trial."Id. at 371 U. S. 363. It concluded that their failure to exercise due diligence, combined with the absence of prejudice from the alleged illegalities, precluded the raising of the issue, and the Court of Appeals affirmed. In this Court, petitioners conceded that Rule 12(b)(2) applied to their objection to the grand jury array, but they denied that it applied to the petit jury. Both objections were held foreclosed by the petitioners' years of inaction, and the lower courts' application of the Rule was affirmed. Shotwell thus confirms that Rule 12(b)(2) precludes untimely challenges to grand jury arrays, even when such challenges are on constitutional grounds. [Footnote 5] Despite the strong analogy between the effect of the Rule as construed in Shotwell and petitioner's § 2255 allegations, he nonetheless contends that Kaufman v. United States, supra, establishes that he is not precluded from raising Page 411 U. S. 239 his constitutional challenge in a § 2255 proceeding. [Footnote 6] See Fay v. Noia, supra. We disagree.In Kaufman, the defendant in a bank robbery conviction sought collateral relief under § 2255, alleging that illegally seized evidence had been admitted against him at trial over a timely objection, and that this evidence resulted in the rejection of his only defense to the charge. The application was denied in both the District Court and the Court of Appeals on the ground that it had not been raised on appeal from the judgment of conviction, and "that a motion under § 2255 cannot be used in lieu of an appeal." 394 U.S. at 394 U. S. 223. This Court reversed, however, holding that, when constitutional claims are asserted, post-conviction relief cannot be denied solely on the ground that relief should have been sought by appeal. Ibid.But the Court in Kaufman was not dealing with the sort of express waiver provision contained in Rule 12(b)(2) which specifically provides for the waiver of a particular Page 411 U. S. 240 kind of constitutional claim if it be not timely asserted. The claim in Kaufman was that the applicable provisions of § 2255, by implication, forbade the assertion of a constitutional claim of unlawful search and seizure where the defendant failed to assert the claim on appeal from the judgment of conviction. [Footnote 7] See, e.g., Sunal v. Large, 332 U. S. 174, 332 U. S. 179 (1947). The Court held that the statute did not preclude the granting of relief on such a claim simply because it had not been asserted on appeal, where there was no indication of a knowing and deliberate bypass of the appeal procedure. But here, the Government's claim is not that § 2255 itself limits or precludes the assertion of petitioner's claim, but that the separate provisions of Rule 12(b)(2) do so. Kaufman, therefore, is dispositive only if the absence of a statutory provision for waiver in § 2255, and the federal habeas statute, by implication, precludes the application to post-conviction proceedings of the express waiver provision found in the Federal Rules of Criminal Procedure.Shotwell held that a claim of unconstitutional grand jury composition, raised four years after conviction, but while the appeal proceedings were still alive, was governed by Rule 12(b)(2). Both the reasons for the Rule and the normal rules of statutory construction clearly indicate that no more lenient standard of waiver should Page 411 U. S. 241 apply to a claim raised three years after conviction simply because the claim is asserted by way of collateral attack, rather than in the criminal proceeding itself.The waiver provisions of Rule 12(b)(2) are operative only with respect to claims of defects in the institution of criminal proceedings. If its time limits are followed, inquiry into an alleged defect may be concluded, and, if necessary, cured before the court, the witnesses, and the parties have gone to the burden and expense of a trial. If defendants were allowed to flout its time limitations, on the other hand, there would be little incentive to comply with its terms when a successful attack might simply result in a new indictment prior to trial. Strong tactical considerations would militate in favor of delaying the raising of the claim in hopes of an acquittal, with the thought that, if those hopes did not materialize, the claim could be used to upset an otherwise valid conviction at a time when reprosecution might well be difficult.Rule 12(b)(2), promulgated by this Court and, pursuant to 18 U.S.C. § 3771, "adopted" by Congress, governs, by its terms, the manner in which the claims of defects in the institution of criminal proceedings may be waived. See Singer v. United States, 380 U. S. 24, 380 U. S. 37 (1965). Were we confronted with an express conflict between the Rule and a prior statute, the force of § 3771, providing that "[a]ll laws in conflict with such rules shall be of no further force or effect," is such that the prior inconsistent statute would be deemed to have been repealed. Cf. Sibbach v. Wilson & Co., 312 U. S. 1, 312 U. S. 10 (1941). The Federal Rules of Criminal Procedure do not, ex proprio vigore, govern post-conviction proceedings, and, had Congress in enacting the statutes governing federal collateral relief specifically there dealt with the issue of waiver, we would be faced with a difficult question of repeal by implication of such a provision by the later-enacted Page 411 U. S. 242 rules of criminal procedure. But Congress did not deal with the question of waiver in the federal collateral relief statutes, and, in Kaufman, this Court held that, since § 2255 had not spoken on the subject of waiver with respect to claims of unlawful search and seizure, a particular doctrine of waiver would be applied by this Court in interpreting the statute.We think it inconceivable that Congress, having in the criminal proceeding foreclosed the raising of a claim such as this after the commencement of trial in the absence of a showing of "cause" for relief from waiver, nonetheless intended to perversely negate the Rule's purpose by permitting an entirely different, but much more liberal, requirement of waiver in federal habeas proceedings. We believe that the necessary effect of the congressional adoption of Rule 12(b)(2) is to provide that a claim, once waived pursuant to that Rule, may not later be resurrected, either in the criminal proceedings or in federal habeas, in the absence of the showing of "cause" which that Rule requires. We therefore hold that the waiver standard expressed in Rule 12(b)(2) governs an untimely claim of grand jury discrimination not only during the criminal proceeding, but also later on collateral review.Our conclusion in this regard is further buttressed by the Court's observation in Parker v. North Carolina, 397 U. S. 790, 397 U. S. 798 (1970), decided the year after Kaufman, that "[w]hether the question of racial exclusion in the selection of the grand jury is open in a federal habeas corpus action we need not decide." The context of the Court's language makes it apparent that the question was framed in terms of waiver and timely assertion of such a claim in state criminal proceedings. But if the question were left open with respect to state proceedings, it must have been at least patently open with respect to Page 411 U. S. 243 federal habeas review of federal convictions, where Congress is the lawgiver both as to the procedural rules governing the criminal trial and the principles governing collateral review.IIThe principles of Rule 12(b)(2), as construed in Shotwell, are not difficult to apply to the facts of this case. Petitioner alleged the deprivation of a substantial constitutional right, recognized by this Court as applicable to state criminal proceedings from Bush v. Kentucky, 107 U. S. 110 (1883), through Alexander v. Louisiana, 405 U. S. 625 (1972). But he failed to assert the claim until long after his trial, verdict, sentence, and appeal had run their course. In findings challenged only half-heartedly here, the District Court determined that no motion, oral or otherwise, raised the issue of discrimination in the selection of the grand jurors prior to trial. The Court of Appeals affirmed, and, on petition for rehearing, conducted its own search of the record in a vain effort to see whether the files or docket entries in the case supported petitioner's contention that he had made such a motion. We will not disturb the coordinate findings of these two courts on a question such as this.The waiver provision of the Rule therefore coming into play, the District Court held that there had been no "cause shown" which would justify relief. It said:"Petitioner offers no plausible explanation of his failure to timely make his objection to the composition of the grand jury. The method of selecting grand jurors then in use was the same system employed by this court for years. No reason has been suggested why petitioner or his attorney could not have ascertained all of the facts necessary to present the objection to the court prior to trial. The same Page 411 U. S. 244 grand jury that indicted petitioner also indicted his two white accomplices. The case had no racial overtones. The government's case against petitioner was, although largely circumstantial, a strong one. There was certainly sufficient evidence against petitioner to justify a grand jury in determining that he should stand trial for the offense with which he was charged. . . . Petitioner has shown no cause why the court should grant him relief from his waiver of the objection to the composition of the grand jury. . . ."In denying the relief, the court took into consideration the question of prejudice to petitioner. This approach was approved in Shotwell, where the Court stated:"[W]here, as here, objection to the jury selection has not been timely raised under Rule 12(b)(2), it is entirely proper to take absence of prejudice into account in determining whether a sufficient showing has been made to warrant relief from the effect of that Rule."371 U.S. at 371 U. S. 363.Petitioner seeks to avoid this aspect of Shotwell by asserting that there both lower courts had found that petitioners were not prejudiced in any way by the alleged illegalities, whereas, under Peters v. Kiff, 407 U. S. 493 (1972), prejudice is presumed in cases where there is an allegation of racial discrimination in grand jury composition. But Peters dealt with whether or not a white man had a substantive constitutional right to set aside his conviction upon proof that Negroes had been systematically excluded from the state grand and petit juries which indicted and tried him. Three Justices dissented from the Court's upholding of such a substantive right on the ground that no prejudice had been shown, and three concurred separately in the Page 411 U. S. 245 judgment. But the three opinions delivered in Peters, supra, all indicate a focus on the existence of the constitutional right, rather than its possible loss through delay in asserting it. The presumption of prejudice which supports the existence of the right is not inconsistent with a holding that actual prejudice must be shown in order to obtain relief from a statutorily provided waiver for failure to assert it in a timely manner.We hold that the District Court did not abuse its discretion in denying petitioner relief from the application of the waiver provision of Rule 12(b)(2), and that, having concluded he was not entitled to such relief, it properly dismissed his motion under § 2255. Accordingly, the judgment of the Court of Appeals isAffirmed

U.S. Supreme CourtDavis v. United States, 411 U.S. 233 (1973)Davis v. United StatesNo. 71-6481Argued February 20, 1973Decided April 17, 1973411 U.S. 233SyllabusThree years after his conviction for a federal crime, petitioner brought this collateral attack on the ground of unconstitutional discrimination in the composition of the grand jury that indicted him. The District Court found that, though petitioner could have done so, he at no stage of the proceedings attacked the grand jury's composition, and it concluded that, under Fed.Rule Crim.Proc. 12(b)(2), he had waived his right to do so. The court also determined that, since the challenged jury selection method had long obtained, the grand jury that indicted petitioner indicted his two white accomplices, and the case against petitioner was "a strong one," there was no "cause shown" under the rule to grant relief from the waiver. The Court of Appeals affirmed.Held:1. The waiver standard set forth in Fed.Rule Crim.Proc. 12(b)(2) governs an untimely claim of grand jury discrimination, not only during the criminal proceeding, but also later on collateral review. Shotwell Mfg. Co. v. United States, 371 U. S. 341, followed; Kaufman v. United States, 394 U. S. 217, distinguished. Pp. 411 U. S. 236-243.2. The District Court, in the light of the record in this case, did not abuse its discretion in denying petitioner relief from the application of the waiver provision. Pp. 411 U. S. 243-245.455 F.2d 919, affirmed.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, BLACKMUN, and POWELL, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which DOUGLAS and BRENNAN, JJ., joined, post, p. 411 U. S. 245. Page 411 U. S. 234

1990_89-5961

Justice O'CONNOR delivered the opinion of the Court.This case requires us to determine precisely what effect the Florida courts gave to the evidence petitioner presented in mitigation of his death sentence, and consequently determine whether his death sentence meets federal constitutional requirements.IOn the afternoon of February 6, 1982, petitioner Robert Parker and several others set off to recover money owed them for the delivery of illegal drugs. There followed a nightmarish series of events that ended in the early morning hours of February 7 with the deaths of Richard Padgett, Jody Dalton, and Nancy Sheppard.A Duval County, Florida grand jury indicted Parker, his former wife Elaine, Tommy Groover, and William Long for the first-degree murders of Padgett, Dalton, and Sheppard. Elaine Parker and Long entered negotiated pleas to second-degree murder. A jury convicted Groover of all three first-degree murders, and the judge sentenced him to death on two counts and life imprisonment on the third.Parker's jury convicted him of first-degree murder for the killings of Padgett and Sheppard and third-degree murder for the Dalton killing. At the advisory sentencing hearing, Parker presented evidence in mitigation of a death sentence and argued that such evidence also had been presented at trial. The jury found that sufficient aggravating circumstances existed to justify a death sentence as to both the Padgett and Sheppard murders, but that sufficient mitigating circumstances existed that outweighed these aggravating factors. The jury therefore recommended that Parker be sentenced to life imprisonment on both first-degree counts.The trial judge, who has ultimate sentencing authority under Florida law, accepted the jury's recommendation for the Padgett murder. The judge overrode the jury's recommendation for the Sheppard murder, however, and sentenced Parker to death. The judge's sentencing order explained Page 498 U. S. 311 that "this Court has carefully studied and considered all the evidence and testimony at trial and at advisory sentence proceedings." App. 47. After reviewing the evidence of the various aggravating and mitigating circumstances defined by Florida statute, the judge found six aggravating circumstances present as to the Sheppard murder and no statutory mitigating circumstances. In the sentencing order, the judge did not discuss evidence of, or reach any explicit conclusions concerning, nonstatutory mitigating evidence. He did conclude that"[t]here are no mitigating circumstances that outweigh the aggravating circumstances in the first count (Padgett murder) and the second count (Sheppard murder)."Id. at 61.On direct appeal, the Florida Supreme Court affirmed Parker's convictions and sentences. Parker v. State, 458 So. 2d 750 (1984), cert. denied, 470 U.S. 1088 (1985). The court concluded, however, that there was insufficient evidence to support two of the aggravating circumstances that the trial judge had relied upon in sentencing Parker to death: that the Sheppard murder was "especially heinous, atrocious and cruel," and that the murder was committed during a robbery. 458 So. 2d at 754. Nonetheless, the court affirmed the death sentence, its entire written analysis consisting of the following:"The trial court found no mitigating circumstances to balance against the aggravating factors, of which four were properly applied. In light of these findings the facts suggesting the sentence of death are so clear and convincing that virtually no reasonable person could differ. Tedder v. State, 322 So. 2d 908 (Fla. 1975). The jury override was proper, and the facts of this case clearly place it within the class of homicides for which the death penalty has been found appropriate."Ibid.Parker pursued state collateral review without success, and then filed a petition for a writ of habeas corpus in the United States District Court for the Middle District of Florida. Page 498 U. S. 312 That court denied Parker's petition as to his convictions, but granted the petition as to the imposition of the death penalty. App. 146. The court concluded that the trial judge had found no nonstatutory mitigating circumstances. The court also found that there was sufficient evidence in the record to support a finding of nonstatutory mitigating circumstances, and, in particular, to support the jury's recommendation of a life sentence for the Sheppard murder. Because, under Florida law, a sentencing judge is to override a jury's recommendation of life imprisonment only when "virtually no reasonable person could differ," Tedder v. State, 322 So. 2d 908, 910 (Fla.1975) (per curiam), the District Court concluded that the failure of the trial judge to find the presence of nonstatutory mitigating circumstances fairly supported by the record rendered the death sentence unconstitutional. App. 139-142. The District Court also speculated that the trial judge might have failed even to consider nonstatutory mitigating circumstances, thereby violating the rule of Hitchcock v. Dugger, 481 U. S. 393 (1987). App. 143. The court ordered the State of Florida to hold a resentencing hearing within 120 days or to vacate the death sentence and impose a lesser sentence. App. 146.The Court of Appeals for the Eleventh Circuit reversed. 876 F.2d 1470 (1989). That court agreed with the District Court that there was "copious evidence of nonstatutory mitigating circumstances presented by Parker during the sentencing phase." Id. at 1475, n. 7. As a consequence, however, the Court of Appeals refused to read the trial judge's silence as to nonstatutory mitigating circumstances as an indication that the judge did not consider or find such circumstances:"Under the facts of this case, the only reasonable conclusion is that the trial judge found at least some mitigating factors to be present, but also found that they were outweighed by the aggravating factors also present. In his sentencing order, the judge wrote that '[t]here are no mitigating circumstances that outweigh the aggravating circumstances Page 498 U. S. 313 in . . . the second count (Sheppard murder).' (Emphasis added)."Id. at 1475. The Court of Appeals found no constitutional error in Parker's convictions or death sentence. We granted certiorari, 497 U.S. 1023 (1990), and now reverse the judgment of the Court of Appeals and remand for further proceedings.IIParker presents several related challenges to his death sentence. The crux of his contentions is that the Florida courts acted in an arbitrary and capricious manner by failing to treat adequately the evidence he presented in mitigation of the sentence. This case is somewhat unusual in that we are required to reconstruct that which we are to review. The trial judge's order imposing the challenged sentence does not state explicitly what effect the judge gave Parker's nonstatutory mitigating evidence. We must first determine what precisely the trial judge found.Florida statute defines certain aggravating and mitigating circumstances relevant to the imposition of the death penalty. Fla. Stat. §§ 921.141(5), 921.141(6) (1985 and Supp.1990). The death penalty may be imposed only where sufficient aggravating circumstances exist that outweigh mitigating circumstances. Fla.Stat. § 921.141(3) (1985). A jury makes an initial sentencing recommendation to the judge; the judge imposes the sentence. §§ 921.141(2), 921.141(3). Both may consider only those aggravating circumstances described by statute. McCampbell v. State, 421 So. 2d 1072, 1075 (Fla.1982) (per curiam ). In counterbalance, however, they may consider any mitigating evidence, whether or not it goes to a statutory mitigating circumstance. Jacobs v. State, 396 So. 2d 713, 718 (Fla. 1981) (per curiam). If the jury recommends a life sentence rather than the death penalty, the judge may override that recommendation and impose a sentence of death only where "the facts suggesting a Page 498 U. S. 314 sentence of death [are] so clear and convincing that virtually no reasonable person could differ." Tedder, supra, at 910.The jury here recommended a life sentence for the Sheppard murder. The trial judge overrode that recommendation. In his sentencing order, the judge described in detail his fact finding as to each of the eight statutory aggravating and seven statutory mitigating circumstances. The judge found six aggravating circumstances present as to the Sheppard murder, and no statutory mitigating circumstances. App. 48-60. The sentencing order makes no specific mention of nonstatutory mitigating circumstances. Under "Findings of the Court," the order states: "There are no mitigating circumstances that outweigh the aggravating circumstances." Id. at 60-61.What did the trial judge conclude about nonstatutory mitigating evidence? There is no question that Parker presented such evidence. For example, several witnesses at trial, including witnesses for the State, testified that Parker was under the influence of large amounts of alcohol and various drugs, including LSD, during the murders. Tr. 1401-1402, 1497, 1540-1541, 1619, 1738-1739, 1834, 1836, 1880-1881. At the sentencing hearing, Parker's attorney emphasized to the jury that none of Parker's accomplices received a death sentence for the Sheppard murder. Billy Long, who admitted shooting Nancy Sheppard, had been allowed to plead guilty to second-degree murder. Id. at 2366, 2378, 2491-2496. Finally, numerous witnesses testified on Parker's behalf at the sentencing hearing concerning his background and character. Their testimony indicated both a difficult childhood, including an abusive, alcoholic father, and a positive adult relationship with his own children and with his neighbors. Id. at 2322-2360.We must assume that the trial judge considered all this evidence before passing sentence. For one thing, he said he did. The sentencing order states:"Before imposing sentence, this Court has carefully studied and considered all the Page 498 U. S. 315 evidence and testimony at trial and at advisory sentence proceedings, the presentence Investigation Report, the applicable Florida Statutes, the case law, and all other factors touching upon this case."App. 47 (emphasis added). Under both federal and Florida law, the trial judge could not refuse to consider any mitigating evidence. See Jacobs, supra, at 718; Songer v. State, 365 So. 2d 696, 700 (Fla.1978) (per curiam ), cert. denied, 441 U.S. 956 (1979); Eddings v. Oklahoma, 455 U. S. 104 (1982); Lockett v. Ohio, 438 U. S. 586 (1978) (plurality opinion). In his instructions to the jury concerning its sentencing recommendation, the judge explained that, in addition to the statutory mitigating factors, the jury could consider "[a]ny other aspect of the defendant's character or record, and any other circumstances of the crime." Tr. 2506-2507. Moreover, Parker's nonstatutory mitigating evidence drug and alcohol intoxication, more lenient sentencing for the perpetrator of the crime, character and background -- was of a type that the Florida Supreme Court had in other cases found sufficient to preclude a jury override. See, for example, Norris v. State, 429 So. 2d 688, 690 (1983) (per curiam) (defendant claimed to be intoxicated); Buckrem v. State, 355 So. 2d 111, 113-114 (1978) (same); Malloy v. State, 382 So. 2d 1190, 1193 (1979) (per curiam ) (lesser sentence for triggerman); McCampbell, supra, at 1075-1076 (background and character); Jacobs, supra, at 718 (same). The trial judge must have at least taken this evidence into account before passing sentence.We also conclude that the trial judge credited much of this evidence, although he found that it did not outweigh the aggravating circumstances. The judge instructed the jurors at the end of the sentencing hearing that they need be only "reasonably convinced" that a mitigating circumstance exists to consider it established. Tr. 2507; Florida Bar, Florida Standard Jury Instructions in Criminal Cases 81 (1981 ed.). We assume the judge applied the same standard himself. He must, therefore, have found at least some nonstatutory Page 498 U. S. 316 mitigating circumstances. The evidence of Parker's intoxication at the time of the murders was uncontroverted. There is also no question that Long, despite being the triggerman for the Sheppard murder, received a lighter sentence than Parker. Respondent conceded this fact in oral argument before this Court. See Tr. of Oral Arg. 35. And, as noted, there was extensive evidence going to Parker's personal history and character that might have provided some mitigation.In addition, every court to have reviewed the record here has determined that the evidence supported a finding of nonstatutory mitigating circumstances. Both the District Court and the Court of Appeals, in reviewing Parker's habeas petition, concluded that there was more than enough evidence in this record to support such a finding. See App. 141-142; 876 F.2d at 1475. We agree. We note also that the jury found sufficient mitigating circumstances to outweigh the aggravating circumstances in the Sheppard murder. The Florida Supreme Court did not make its own determination of whether the evidence supported a finding of nonstatutory mitigating circumstances. See Parker, 458 So. 2d at 754, quoted supra, at 734. To the extent there is ambiguity in the sentencing order, we will not read it to be against the weight of the evidence.Perhaps the strongest indication that the trial judge found nonstatutory mitigating circumstances is that the judge overrode the jury's sentencing recommendation for the Sheppard murder, but not for the Padgett murder. The jury recommended a life sentence for both murders. The judge explicitly found six aggravating circumstances related to the Sheppard murder and five aggravating circumstances related to the Padgett murder. App. 56-60. The judge found no statutory mitigating circumstances as to either murder. Id. at 48-56. Yet he sentenced Parker to death for the Sheppard murder, but accepted the jury's recommendation as to the Padgett murder. If the judge had found no nonstatutory Page 498 U. S. 317 mitigating circumstances, he would have had nothing to balance against the aggravating circumstances for either murder, and the judge presumably would have overridden both recommendations.It must be that the judge sentenced differentially for the two murders because he believed that the evidence in the Sheppard murder was so "clear and convincing that virtually no reasonable person could differ" about the sentence of death, see Tedder, 322 So. 2d at 910, whereas the evidence in the Padgett murder did not meet this test. Perhaps this decision was based solely on the fact that the judge had found six aggravating circumstances in the Sheppard murder but only five in the Padgett murder. Far more likely, however, is that the judge found nonstatutory mitigating circumstances, at least as to the Padgett murder. But, as the nonstatutory mitigating evidence was in general directed to both murders, there is no reason to think the judge did not find mitigation as to both.The best evidence that the trial judge did not find any nonstatutory mitigating circumstances is that the sentencing order contains detailed findings as to statutory mitigating circumstances, but makes no explicit reference to nonstatutory evidence. There is a likely explanation for this fact. By statute, the sentencing judge is required to set forth explicitly his findings as to only the statutory aggravating and mitigating circumstances. Fla.Stat. § 921.141(3) (1985). Florida case law at the time the trial judge entered Parker's sentencing order required no more. See Mason v. State, 438 So. 2d 374, 380 (1983), cert. denied, 465 U.S. 1051 (1984) (trial judge need not expressly address each nonstatutory mitigating circumstance). Only very recently has the Florida Supreme Court established a requirement that a trial court must expressly evaluate in its sentencing order each nonstatutory mitigating circumstance proposed by the defendant. See Campbell v. State, 15 Fla.L.W. 342 (June 14, 1990). The absence of a requirement that the sentencing order contain Page 498 U. S. 318 specific findings as to nonstatutory mitigating circumstances probably explains why the order here discusses only those circumstances categorized by statute. Nonstatutory evidence, precisely because it does not fall into any predefined category, is considerably more difficult to organize into a coherent discussion; even though a more complete explanation is obviously helpful to a reviewing court, from the trial judge's perspective it is simpler merely to conclude, in those cases where it is true, that such evidence taken together does not outweigh the aggravating circumstances. And so the judge did, stating that he found "no mitigating circumstances that outweigh the aggravating circumstances." App. 61 (emphasis added).In light of the substantial evidence, much of it uncontroverted, favoring mitigation, the differential sentences for the Sheppard and Padgett murders, and that the judge indicated that he found no mitigating circumstances "that outweigh" aggravating circumstances, we must conclude, as did the Court of Appeals, that the trial court found and weighed nonstatutory mitigating circumstances before sentencing Parker to death.IIIThe Florida Supreme Court did not consider the evidence of nonstatutory mitigating circumstances. On direct review of Parker's sentence, the Florida Supreme Court struck two of the aggravating circumstances on which the trial judge had relied. The Supreme Court nonetheless upheld the death sentence because "[t]he trial court found no mitigating circumstances to balance against the aggravating factors." Parker, 458 So. 2d at 754. The Florida Supreme Court erred in its characterization of the trial judge's findings, and consequently erred in its review of Parker's sentence.As noted, Florida is a weighing state; the death penalty may be imposed only where specified aggravating circumstances outweigh all mitigating circumstances. Fla.Stat. § 921.141(3) (1985); McCampbell, 421 So. 2d at 1075; Jacobs, Page 498 U. S. 319 396 So. 2d at 718. In a weighing state, when a reviewing court strikes one or more of the aggravating factors on which the sentencer relies, the reviewing court may, consistent with the Constitution, reweigh the remaining evidence or conduct a harmless error analysis. Clemons v. Mississippi, 494 U. S. 738, 494 U. S. 741 (1990). It is unclear what the Florida Supreme Court did here. It certainly did not conduct an independent reweighing of the evidence. In affirming Parker's sentence, the court explicitly relied on what it took to be the trial judge's finding of no mitigating circumstances. Parker, supra, at 754. Had it conducted an independent review of the evidence, the court would have had no need for such reliance. More to the point, the Florida Supreme Court has made it clear on several occasions that it does not reweigh the evidence of aggravating and mitigating circumstances. See, e.g., Hudson v. State, 538 So. 2d 829, 831 (per curiam ), cert. denied, 493 U.S. 875 (1989) ("It is not within this Court's province to reweigh or reevaluate the evidence presented as to aggravating or mitigating circumstances"); Brown v. Wainwright, 392 So. 2d 1327, 1331-1332 (1981) (per curiam ).The Florida Supreme Court may have conducted a harmless error analysis. At the time it heard Parker's appeal, this was its general practice in cases in which it had struck aggravating circumstances and the trial judge had found no mitigating circumstances. See Sireci v. State, 399 So. 2d 964, 971 (Fla.1981), cert. denied, 456 U.S. 984 (1982); Elledge v. State, 346 So. 2d 998, 1002-1003 (Fla.1977). Perhaps the Florida Supreme Court conducted a harmless error analysis here: believing that the trial judge properly had found four aggravating circumstances, and no mitigating circumstances to weigh against them, the Florida Supreme Court may have determined that elimination of two additional aggravating circumstances would have made no difference to the sentence.But, as we have explained, the trial judge must have found mitigating circumstances. The Florida Supreme Court's Page 498 U. S. 320 practice in such cases -- where the court strikes one or more aggravating circumstances relied on by the trial judge and mitigating circumstances are present -- is to remand for a new sentencing hearing. See id. at 1002-1003; Moody v. State, 418 So. 2d 989, 995 (1982). Following Clemons, a reviewing court is not compelled to remand. It may instead reweigh the evidence or conduct a harmless error analysis based on what the sentencer actually found. What the Florida Supreme Court could not do, but what it did, was to ignore the evidence of mitigating circumstances in the record and misread the trial judge's findings regarding mitigating circumstances, and affirm the sentence based on a mischaracterization of the trial judge's findings.In Wainwright v. Goode, 464 U. S. 78, 464 U. S. 83-85 (1983), the Court held that a federal court on habeas review must give deference to a state appellate court's resolution of an ambiguity in a state trial court statement. We did not decide in Goode whether the issue resolved by the state appellate court was properly characterized as one of law or of fact. In this case, we conclude that a determination of what the trial judge found is an issue of historical fact. It depends on an examination of the transcript of the trial and sentencing hearing, and the sentencing order. This is not a legal issue; no determination of the legality of Parker's sentence under Florida law necessarily follows from a resolution of the question of what the trial judge found.Because it is a factual issue, the deference we owe is that designated by 28 U.S.C. § 2254. In ruling on a petition for a writ of habeas corpus, a federal court is not to overturn a factual conclusion of a state court, including a state appellate court, unless the conclusion is not "fairly supported by the record." § 2254(d)(8); Goode, supra, at 464 U. S. 85. For the reasons stated, we find that the Florida Supreme Court's conclusion that the trial judge found no mitigating circumstances is not fairly supported by the record in this case. Page 498 U. S. 321IV"If a State has determined that death should be an available penalty for certain crimes, then it must administer that penalty in a way that can rationally distinguish between those individuals for whom death is an appropriate sanction and those for whom it is not."Spaziano v. Florida, 468 U. S. 447, 468 U. S. 460 (1984). The Constitution prohibits the arbitrary or irrational imposition of the death penalty. Id. at 468 U. S. 466-467. We have emphasized repeatedly the crucial role of meaningful appellate review in ensuring that the death penalty is not imposed arbitrarily or irrationally. See, e.g., Clemons, supra, 494 U.S. at 494 U. S. 749 (citing cases); Gregg v. Georgia, 428 U. S. 153 (1976). We have held specifically that the Florida Supreme Court's system of independent review of death sentences minimizes the risk of constitutional error, and have noted the "crucial protection" afforded by such review in jury override cases. Dobbert v. Florida, 432 U. S. 282, 432 U. S. 295 (1977). See also Proffitt v. Florida, 428 U. S. 242, 428 U. S. 253 (1976); Spaziano, supra, 468 U.S. at 468 U. S. 447 (1984). The Florida Supreme Court did not conduct an independent review here. In fact, there is a sense in which the court did not review Parker's sentence at all.It cannot be gainsaid that meaningful appellate review requires that the appellate court consider the defendant's actual record. "What is important . . . is an individualized determination on the basis of the character of the individual and the circumstances of the crime." Zant v. Stephens, 462 U. S. 862, 462 U. S. 879 (1983). See also Clemons, supra, 494 U.S. at 494 U. S. 749, 494 U. S. 752 Barclay v. Florida, 463 U. S. 939, 463 U. S. 958 (1983) (plurality opinion). The Florida Supreme Court affirmed Parker's death sentence neither based on a review of the individual record in this case nor in reliance on the trial judge's findings based on that record, but in reliance on some other nonexistent findings. Page 498 U. S. 322The jury found sufficient mitigating circumstances to outweigh the aggravating circumstances, and recommended that Parker be sentenced to life imprisonment for the Sheppard murder. The trial judge found nonstatutory mitigating circumstances related to the Sheppard murder. The judge also declined to override the jury's recommendation as to the Padgett murder, even though he found five statutory aggravating circumstances and no statutory mitigating circumstances related to that crime. The Florida Supreme Court then struck two of the aggravating circumstances on which the trial judge had relied. On these facts, the Florida Supreme Court's affirmance of Parker's death sentence based on four aggravating circumstances and the trial judge's "finding" of no mitigating circumstances was arbitrary.This is not simply an error in assessing the mitigating evidence. Had the Florida Supreme Court conducted its own examination of the trial and sentencing hearing records and concluded that there were no mitigating circumstances, a different question would be presented. Similarly, if the trial judge had found no mitigating circumstances and the Florida Supreme Court had relied on that finding, our review would be very different. Cf. Lewis v. Jeffers, 497 U. S. 764 (1990). But the Florida Supreme Court did not come to its own independent factual conclusion, and it did not rely on what the trial judge actually found; it relied on "findings" of the trial judge that bear no necessary relation to this case. After striking two aggravating circumstances, the Florida Supreme Court affirmed Parker's death sentence without considering the mitigating circumstances. This affirmance was invalid because it deprived Parker of the individualized treatment to which he is entitled under the Constitution. See Clemons, supra, 494 U.S. at 494 U. S. 752.VWe reverse the judgment of the Court of Appeals and remand with instructions to return the case to the District Page 498 U. S. 323 Court to enter an order directing the State of Florida to initiate appropriate proceedings in state court so that Parker's death sentence may be reconsidered in light of the entire record of his trial and sentencing hearing and the trial judge's findings. The District Court shall give the State a reasonable period of time to initiate such proceedings. We express no opinion as to whether the Florida courts must order a new sentencing hearing.As to Parker's remaining questions presented to this Court, his petition for a writ of certiorari is dismissed as improvidently granted.It is so ordered

U.S. Supreme CourtParker v. Dugger, 498 U.S. 308 (1991)Parker v. DuggerNo. 89-5961Argued Nov. 7, 1990Decided Jan. 22, 1991498 U.S. 308SyllabusA Florida jury convicted petitioner Parker of first-degree murder for the killings of Richard Padgett and Nancy Sheppard. At the advisory sentencing hearing, the jury found that sufficient aggravating circumstances existed to justify a death sentence as to both murders, but that sufficient mitigating circumstances existed to outweigh those aggravating factors, and therefore recommended that Parker be sentenced to life imprisonment on both counts. The trial judge, who has ultimate sentencing authority under state law, accepted the jury's recommendation for the Padgett murder, but overrode the recommendation for the Sheppard murder and sentenced Parker to death. The judge explained, inter alia, that he had found, based on a review of the evidence, six statutory aggravating circumstances as to the Sheppard murder, and no statutory mitigating circumstances. He did not discuss evidence of, or reach any explicit conclusions concerning, nonstatutory mitigating evidence, but declared that "[t]here are no mitigating circumstances that outweigh the aggravating circumstances in" either count. Although concluding that there was insufficient evidence of two of the aggravating circumstances relied on by the trial judge, the State Supreme Court affirmed the death sentence, declaring that the trial court had found no mitigating circumstances to balance against the four properly applied aggravating factors. The court ruled that the facts suggesting the death sentence were "so clear and convincing that no reasonable person could differ," and therefore that judicial override of the jury's recommendation of life was appropriate under state law. The Federal District Court granted Parker's habeas corpus petition as to the imposition of the death penalty, ruling that the sentence was unconstitutional. The Court of Appeals reversed.Held: The Florida Supreme Court acted arbitrarily and capriciously by failing to treat adequately Parker's nonstatutory mitigating evidence. Pp. 498 U. S. 313-323.(a) Although the trial judge's order imposing the death sentence does not state explicitly what effect he gave Parker's nonstatutory mitigating evidence, it must be concluded that the judge found and weighed such evidence before imposing the sentence. The record contains substantial Page 498 U. S. 309 evidence, much of it uncontroverted, favoring mitigation. Moreover, the judge declined to override the jury's recommendation of life imprisonment for the Padgett murder, indicating that he found nonstatutory mitigating circumstances in that murder. Furthermore, the judge stated that he found no mitigating circumstances "that outweigh" aggravating circumstances, indicating that nonstatutory mitigating circumstances did, in fact, exist. Pp. 498 U. S. 313-318.(b) Thus, the State Supreme Court erred in concluding that the trial judge found no mitigating circumstances to balance against the aggravating factors, and consequently erred in its review of Parker's sentence. Where a reviewing court in a weighing State strikes one or more of the aggravating factors on which the sentencer relies, the reviewing court may, consistent with the Constitution, reweigh the remaining evidence or conduct a harmless error analysis. Clemons v. Mississippi, 494 U. S. 738, 494 U. S. 741. The State Supreme Court did not conduct an independent reweighing of the evidence, since it explicitly relied on what it took to be the trial judge's findings of no mitigating circumstances. Moreover, even if the court conducted a harmless error analysis, that analysis was flawed by the court's ignoring of the evidence of mitigating circumstances in the record. Although a federal court on habeas review must give deference to a state appellate court's resolution of an ambiguity in a state trial court's statement, Wainwright v. Goode, 464 U. S. 78, 464 U. S. 83-85, it need not do so where, as here, the appellate court's conclusion is not fairly supported by the record in the case. Pp. 498 U. S. 318-320.(c) The State Supreme Court's affirmance of Parker's death sentence based upon nonexistent findings was invalid because it deprived Parker of the individualized treatment to which he is entitled under the Constitution. Clemons, supra, 494 U.S. at 494 U. S. 752. Pp. 498 U. S. 321-322.876 F.2d 1470 (1989), reversed and remanded.O'CONNOR, J., delivered the opinion of the Court, in which MARSHALL, STEVENS, BLACKMUN, and SOUTER, JJ., joined. WHITE, J., filed a dissenting opinion, in which REHNQUIST, C.J., and SCALIA and KENNEDY, JJ., joined, p. 498 U. S. 323. Page 498 U. S. 310

1959_416

MR. JUSTICE CLARK delivered the opinion of the Court.This is a prosecution for refusal to be inducted into the armed services, in violation of the provisions of the Universal Military Training and Service Act, 62 Stat. 604, 622, 50 U.S.C.App. § 462(a). Petitioner, who claims to be a conscientious objector, contends that he was denied due process both in the proceedings before a hearing officer of the Department of Justice and at trial. He says that he was not permitted to rebut before the hearing officer statements attributed to him by the local board, and, further, that he was denied at trial the right to have the Department of Justice hearing officer's report and the original report of the Federal Bureau of Investigation as to his claim -- all in violation of the Fifth Amendment. The trial judge decided that the administrative procedures of the Act were fully complied with, and refused to require the production of such documents. Petitioner was found guilty and sentenced to 15 months' imprisonment. The Court of Appeals affirmed. 269 F.2d 613. We granted certiorari in view of the importance of the questions in the administration of the Act. 361 U.S. 899. We have concluded that petitioner's claims are controlled by the rationale of Gonzales v. United States, 348 U. S. 407 (1955), and United States v. Nugent, 346 U. S. 1 (1953), and therefore affirm the judgment.Petitioner registered with Local Board No. 9, Boulder, Colorado, on March 17, 1952. His answers to the classification questionnaire reflected that he was a minister of Jehovah's Witnesses, employed at night by a sugar producer. He claimed IV-D classification as a minister of religion, devoting a minimum of 100 hours a month to Page 364 U. S. 61 preaching. On November 13, 1952, he was classified in Class I-A. On November 22, 1952, he wrote the Board, protesting this classification. He again stated that he was "a regular minister"; that he was "devoting an average of 100 hours a month to actual preaching publicly," in addition to 50 to 75 hours in other ministerial duties, and that he opposed war in any form. Thereafter, he was classified I-O. On April 1, 1953, after some six months of full-time "pioneering," petitioner discontinued devoting 100 hours a month to preaching, but failed to so notify his local board. In a periodic review, the local board on July 30, 1953, reclassified him I-A and upheld this classification after a personal appearance by petitioner, because of his willingness to kill in defense of his church and home. Upon administrative approval of the reclassification, he was ordered to report for induction on June 11, 1956, but failed to do so. He was not prosecuted, however, and his case was subsequently reopened, in the light of Sicurella v. United States, 348 U. S. 385 (1955). He was again reclassified I-A by the local board. There followed a customary Department of Justice hearing at which petitioner appeared. In his report to the Attorney General, the hearing officer suggested that the petitioner be exempt only from combatant training and service. On March 21, 1957, however, the Department recommended approval of the I-A classification. Its ground for this recommendation was that, while petitioner claimed before the local board on August 17, 1956 (as evidenced by its memorandum in his file of that date), that he was devoting 100 hours per month to actual preaching, the headquarters of the Jehovah's Witnesses reported that he was no longer doing so and, on the contrary, had relinquished both his Pioneer and Bible Student Servant positions. It reported that he now devoted only some 6 1/2 hours per month to public preaching and from 20 to 25 hours per month to church activities. His claim was therefore "so Page 364 U. S. 62 highly exaggerated," the Department concluded, that it "cast doubt upon his veracity and, consequently, upon his sincerity and good faith." The appeal board furnished petitioner a copy of the recommendation. In his answer thereto, he advised the Board that he had made no such statement in 1956, and asserted that his only claim to "pioneering" was in 1952. The appeal board, however, unanimously concurred in the Department's recommendation. Upon return of the file to the local board, petitioner was again ordered to report for induction, and this prosecution followed his failure to do so.Petitioner first contends that the Department denied him procedural due process by not giving him timely opportunity, before its final recommendation to the appeal board, to answer the statement of the local board as to his claim of devoting 100 hours to actual preaching. But the statement of the local board attributing this claim to petitioner was in his file. He admitted that he knew it was open to him at all times, and he could have rebutted it before the hearing officer. This he failed to do, asserting that he did not know it to be in his file. Apparently he never took the trouble to find out. Nevertheless he had ample opportunity to contest the statement before the appeal board. After the recommendation of the Department is forwarded to the appeal board, that is the appropriate place for a registrant to lodge his denial. This he did. We found in Gonzales v. United States, supra, that this was the controlling reason why copies of the recommendation should be furnished a registrant. We said there that it was necessary"that a registrant be given an opportunity to rebut [the Department's] recommendation when it comes to the Appeal Board, the agency with the ultimate responsibility for classification."348 U.S. at 348 U. S. 412. We fail to see how such procedure resulted in any prejudice to petitioner's contention, which was considered by the appeal board and denied by it. As was Page 364 U. S. 63 said in Gonzales,"it is the Appeal Board which renders the selective service determination considered 'final' in the courts, not to be overturned unless there is no basis in fact. Estep v. United States, 327 U. S. 114."348 U.S. at 348 U. S. 412-413.But there are other contentions which might be considered more difficult. At his trial, petitioner sought to secure through subpoena duces tecum the longhand notes of the Department's hearing officer, Evensen, as well as his report thereon. Petitioner also claimed at trial the right to inspect the original Federal Bureau of Investigation reports to the Department of Justice. He alleged no specific procedural errors or evidence withheld; nor did he elaborate just what favorable evidence the Federal Bureau of Investigation reports might disclose.Section 6(j) of the Act, as we have held, does require the Department's recommendation to be placed in a registrant's file. Gonzales v. United States, supra. But there is nothing in the Act requiring the hearing officer's report to be likewise turned over to the registrant. While the regulations formerly required that the hearing officer's report be placed in the registrant's file, this requirement was eliminated in 1952. Moreover, the hearing officer's report is but intradepartmental, is directed to the Attorney General, and, of course, is not the recommendation of the Department. It is not essentially different from a memorandum of an attorney in the Department of Justice, of which the Attorney General receives many, and to which he may give his approval or rejection. It is but part of the whole process within the Department that goes into the making of the final recommendation to the appeal board.It is also significant that neither this report nor the hearing officer's notes were furnished to the appeal board. Hence, the petitioner had full opportunity to traverse the only conclusions of the Department on file with Page 364 U. S. 64 the Board. Petitioner knew that the Department's recommendation was based not on the hearing officer's report, but on the statement of the local board in his file. Having had every opportunity to rebut the finding of the local board before both the hearing officer and the appeal board, petitioner cannot now claim that he was denied due process because he did not succeed. [Footnote 1]It appears to us that the same reasoning applies to the production of the hearing officer's report and notes at the trial. In addition, petitioner has failed to show any particular need for the report and notes. While there are now allegations of the withholding of "favorable evidence developed at the hearing" and a denial of a "full and fair hearing," no such claim was made by petitioner at any stage of the administrative process. Moreover, his testimony at trial never developed any such facts. In the light of these circumstances, as well as the fact that the issue at trial in this respect centered entirely on the Department's recommendation, which petitioner repudiated but which both the appeal board and the courts below found supported by the record, we find no relevancy in the hearing officer's report and notes.Finally petitioner says that he was entitled to inspect the FBI report during the proceedings before the hearing officer, as well as at the trial. He did receive a resume of it -- the same that was furnished the appeal board -- and he made no claim of its inaccuracy. Even now, no such Page 364 U. S. 65 claim is asserted. He bases his present contention on the general right to explore, indicating that he hopes to find some discrepancy in the resume. But this is fully answered by United States v. Nugent, supra. There, we held"that the statutory scheme for review, within the selective service system, . . . entitles [conscientious objectors] to no guarantee that the FBI reports must be produced for their inspection."346 U.S. at 346 U. S. 5-6. Even if we were not bound by Nugent, petitioner here would not be entitled to the report. The recommendation of the Department -- as well as the decision of the appeal board -- was based entirely on the local board file, not on an FBI report.As to the production of the report at the trial, it is true that, while that issue was raised in Nugent, [Footnote 2] the Court gave it no separate treatment. However, it would be an act of folly not to require the production of such reports before the appeal boards, whose actions "are final" and to be overturned "only if there is no basis in fact for the classification," Estep v. United States, 327 U. S. 114, 327 U. S. 122 (1946), and subsequently to require their production at the trials in the District Courts. We note that the Courts of Appeals have uniformly rejected such claims. This is not to say that there might not be circumstances in a particular case where fairness in the proceeding would require production. No such circumstances, as foundation for a claim of actual unfairness, are before us. Contrariwise, the resume fully set out petitioner's statement before the local board as to his ministerial activity. Since this is not disputed, and since the Department's recommendation was based on a disparity between petitioner's representations before the local Page 364 U. S. 66 board -- not on the FBI report -- it follows that the reasoning of Nugent controls.Petitioner raises other points, such as the fact that the prosecutor did not call the members and clerk of the local board to testify at his trial. We find no substance in any of them. Petitioner could have subpoenaed any witnesses he wished at the trial. It was he who was challenging the classification. The Government relied only on the record in the file, all of which was available to petitioner. He makes much of the identity of the language of the statement he is found to have made before the local board on August 17, 1956, as to his ministerial activity, and his earlier letter to the Board in 1952. But all of this was before the appeal board. Moreover, he could have called witnesses to bring out the circumstances surrounding the statement and the letter; the FBI files would have been to no avail. He contented himself, however, with offering only his own denial. The appeal board resolved this issue against him. It found that his claim as to ministerial activity was exaggerated, and cast doubt on his sincerity. Both courts below have found "that the record is not without evidence to support these conclusions." We will not set aside their findings here.Affirmed

U.S. Supreme CourtGonzales v. United States, 364 U.S. 59 (1960)Gonzales v. United StatesNo. 416Argued May 2, 1960Decided June 27, 1960364 U.S. 59SyllabusPetitioner, who claims to be a conscientious objector, was convicted of violating § 12(a) of the Universal Military Training and Service Act by refusing to be inducted into the armed forces. He claims that he was denied due process of law in violation of the Fifth Amendment, because (1) at a hearing before a hearing officer of the Department of Justice, he was not permitted to rebut statements attributed to him by the local board, and (2) at the trial, he was denied the right to have the hearing officer's report and the original report of the Federal Bureau of Investigation as to his claim.Held: on the record in this case, the administrative procedures prescribed by the Act were fully complied with; petitioner was not denied due process; and his conviction is sustained. Pp. 364 U. S. 60-66.(a) Petitioner was not denied due process in the administrative proceedings, because the statement in question was in his file, to which he had access, and he had opportunities to rebut it both before the hearing officer of the Department of Justice and before the appeal board. Pp. 364 U. S. 62-63.(b) Petitioner was not entitled to have the hearing officer's notes and report, especially since he failed to show any particular need for them and he did have a copy of the Department of Justice's recommendation to the appeal board. Pp. 364 U. S. 63-64.(c) Petitioner was not entitled, either in the administrative hearing at the Department of Justice or at his trial, to inspect the original report of the Federal Bureau of Investigation, since he was furnished a resume of it, did not challenge its accuracy, and showed no particular need for the original report. Pp. 364 U. S. 64-66.269 F.2d 613 affirmed. Page 364 U. S. 60

1997_97-704

JUSTICE THOMAS delivered the opinion of the Court.In a case of death on the high seas, the Death on the High Seas Act, 46 U. S. C. App. § 761 et seq., allows certain relatives of the decedent to sue for their pecuniary losses, but does not authorize recovery for the decedent's pre-death pain and suffering. This case presents the question whether those relatives may nevertheless recover such damages through a survival action under general maritime law. We hold that they may not.IOn September 1, 1983, Korean Air Lines Flight KE007, en route from Anchorage, Alaska, to Seoul, South Korea, strayed into the airspace of the former Soviet Union and was shot down over the Sea of Japan. All 269 people on board were killed.Petitioners, the personal representatives of three of the passengers, brought lawsuits against respondent Korean Air Lines Co., Ltd. (KAL), in the United States District Court for the District of Columbia. These cases were consolidated in that court, along with the other federal actions arising out of the crash. After trial, a jury found that KAL had committed "willful misconduct," thus removing the Warsaw Convention's $75,000 cap on damages, and in a subsequent verdict awarded $50 million in punitive damages. The Court of Appeals for the District of Columbia Circuit upheld the finding of willful misconduct, but vacated the punitive damages award on the ground that the Warsaw Convention does not permit the recovery of punitive damages. In re Korean Air Lines Disaster of Sept. 1, 1983, 932 F.2d 1475, cert. denied, 502 U. S. 994 (1991).The Judicial Panel on Multidistrict Litigation thereafter remanded, for damages trials, all of the individual cases to the District Courts in which they had been filed. In petitioners' cases, KAL moved for a pretrial determination that the Death on the High Seas Act (DOHSA or Act), 46 U. S. C.119App. § 761 et seq., provides the exclusive source of recoverable damages. DOHSA provides, in relevant part:"Whenever the death of a person shall be caused by wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any State, or the District of Columbia, or the Territories or dependencies of the United States, the personal representative of the decedent may maintain a suit for damages in the district courts of the United States, in admiralty, for the exclusive benefit of the decedent's wife, husband, parent, child, or dependent relative .... " § 761."The recovery in such suit shall be a fair and just compensation for the pecuniary loss sustained by the persons for whose benefit the suit is brought .... " § 762.KAL argued that, in a case of death on the high seas, DOHSA provides the exclusive cause of action and does not permit damages for loss of society, survivors' grief, and decedents' pre-death pain and suffering. The District Court for the District of Columbia disagreed, holding that because petitioners' claims were brought pursuant to the Warsaw Convention, DOHSA could not limit the recoverable damages. The court determined that Article 17 of the Warsaw Convention "allows for the recovery of all 'damages sustained,'" meaning any "actual harm" that any party "experienced" as a result of the crash. App. 59.While petitioners' cases were awaiting damages trials, we reached a different conclusion in Zicherman v. Korean Air Lines Co., 516 U. S. 217 (1996), another case arising out of the downing of Flight KE007. In Zicherman, we held that the Warsaw Convention "permit[s] compensation only for legally cognizable harm, but leave[s] the specification of what harm is legally cognizable to the domestic law applicable under the forum's choice-of-law rules," and that where "an120airplane crash occurs on the high seas, DOHSA supplies the substantive United States law." Id., at 231. Accordingly, the petitioners could not recover damages for loss of society: "[W]here DOHSA applies, neither state law, see Offshore Logistics, Inc. v. Tallentire, 477 U. S. 207, 232-233 (1986), nor general maritime law, see Mobil Oil Corp. v. Higginbotham, 436 U. S. 618, 625-626 (1978), can provide a basis for recovery of loss-of-society damages." Id., at 230. We did not decide, however, whether the petitioners in Zicherman could recover for their decedents' pre-death pain and suffering, as KAL had not raised this issue in its petition for certiorari. See id., at 230, n. 4.After the Zicherman decision, KAL again moved to dismiss all of petitioners' claims for nonpecuniary damages. The District Court granted this motion, holding that United States law (not South Korean law) governed these cases; that DOHSA provides the applicable United States law; and that DOHSA does not permit the recovery of nonpecuniary damages-including petitioners' claims for their decedents' predeath pain and suffering. In re Korean Air Lines Disaster of Sept. 1, 1983, 935 F. Supp. 10, 12-15 (1996).On appeal, petitioners argued that, although DOHSA does not itself permit recovery for a decedent's pre-death pain and suffering, general maritime law provides a survival action that allows a decedent's estate to recover for injuries (including pre-death pain and suffering) suffered by the decedent. The Court of Appeals rejected this argument and affirmed. In re Korean Air Lines Disaster of Sept. 1, 1983, 117 F.3d 1477 (CADC 1997). Assuming, arguendo, that there is a survival cause of action under general maritime law, the court held that such an action is unavailable when the death is on the high seas:"For deaths on the high seas, Congress decided who may sue and for what. Judge-made general maritime law may not override such congressional judgments, however ancient those judgments may happen to be. Con-121gress made the law and it is up to Congress to change it." Id., at 1481.We granted certiorari, 522 U. S. 1038 (1998), to resolve a Circuit split concerning the availability of a general maritime survival action in cases of death on the high seas. Compare, e. g., In re Korean Air Lines Disaster, 117 F. 3d, at 1481, with Gray v. Lockheed Aeronautical Systems Co., 125 F.3d 1371, 1385 (CAll 1997).IIBefore Congress enacted DOHSA in 1920, the general law of admiralty permitted a person injured by tortious conduct to sue for damages, but did not permit an action to be brought when the person was killed by that conduct. See generally R. Hughes, Handbook of Admiralty Law 222-223 (2d ed. 1920). This rule stemmed from the theory that a right of action was personal to the victim and thus expired when the victim died. Accordingly, in the absence of an Act of Congress or state statute providing a right of action, a suit in admiralty could not be maintained in the courts of the United States to recover damages for a person's death. See The Harrisburg, 119 U. S. 199, 213 (1886); The Alaska, 130 U. S. 201, 209 (1889).1Congress passed such a statute, and thus authorized recovery for deaths on the high seas, with its enactment of DOHSA. DOHSA provides a cause of action for "the death of a person ... caused by wrongful act, neglect, or default occurring on the high seas," § 761; this action must be brought by the decedent's personal representative "for the exclusive benefit of the decedent's wife, husband, parent,1 We later rejected this rule in Moragne v. States Marine Lines, Inc., 398 U. S. 375, 408-409 (1970), by overruling The Harrisburg, 119 U. S. 199 (1886), and holding that a federal remedy for wrongful death exists under general maritime law. In Sea-Land Services, Inc. v. Gaudet, 414 U. S. 573, 574 (1974), we further held that such wrongful-death awards could include compensation for loss of support and services and for loss of society.122child, or dependent relative," ibid. The Act limits recovery in such a suit to "a fair and just compensation for the pecuniary loss sustained by the persons for whose benefit the suit is sought." § 762. DOHSA also includes a limited survival provision: In situations in which a person injured on the high seas sues for his injuries and then dies prior to completion of the suit, "the personal representative of the decedent may be substituted as a party and the suit may proceed as a suit under this chapter for the recovery of the compensation provided in section 762." § 765. Other sections establish a limitations period, § 763a, govern actions under foreign law, § 764, bar contributory negligence as a complete defense, § 766, exempt the Great Lakes, navigable waters in the Panama Canal Zone, and state territorial waters from the Act's coverage, § 767, and preserve certain state-law remedies and state-court jurisdiction, ibid. DOHSA does not authorize recovery for the decedent's own losses, nor does it allow damages for nonpecuniary losses.In Mobil Oil Corp. v. Higginbotham, 436 U. S. 618 (1978), we considered whether, in a case of death on the high seas, a decedent's survivors could recover damages under general maritime law for their loss of society. We held that they could not, and thus limited to territorial waters those cases in which we had permitted loss of society damages under general maritime law. Id., at 622-624; see n. 1, supra. For deaths on the high seas, DOHSA "announces Congress' considered judgment on such issues as the beneficiaries, the limitations period, contributory negligence, survival, and damages." 436 U. S., at 625. We thus noted that while we could "fil[l] a gap left by Congress' silence," we were not free to "rewrit[e] rules that Congress has affirmatively and specifically enacted." Ibid. Because "Congress ha[d] struck the balance for us" in DOHSA by limiting the available recovery to pecuniary losses suffered by surviving relatives, id., at 623, we had "no authority to substitute our views for those expressed by Congress," id., at 626. Hig-123ginbotham, however, involved only the scope of the remedies available in a wrongful-death action, and thus did not address the availability of other causes of action.Conceding that DOHSA does not authorize recovery for a decedent's pre-death pain and suffering, petitioners seek to recover such damages through a general maritime survival action. Petitioners argue that general maritime law recognizes a survival action, which permits a decedent's estate to recover damages that the decedent would have been able to recover but for his death, including pre-death pain and suffering. And, they contend, because DOHSA is a wrongful-death statute-giving surviving relatives a cause of action for losses they suffered as a result of the decedent's death-it has no bearing on the availability of a survival action.We disagree. DOHSA expresses Congress' judgment that there should be no such cause of action in cases of death on the high seas. By authorizing only certain surviving relatives to recover damages, and by limiting damages to the pecuniary losses sustained by those relatives, Congress provided the exclusive recovery for deaths that occur on the high seas. Petitioners concede that their proposed survival action would necessarily expand the class of beneficiaries in cases of death on the high seas by permitting decedents' estates (and their various beneficiaries) to recover compensation. They further concede that their cause of action would expand the recoverable damages for deaths on the high seas by permitting the recovery of nonpecuniary losses, such as pre-death pain and suffering. Because Congress has already decided these issues, it has precluded the judiciary from enlarging either the class of beneficiaries or the recoverable damages. As we noted in Higginbotham, "Congress did not limit DOHSA beneficiaries to recovery of their pecuniary losses in order to encourage the creation of nonpecuniary supplements." Id., at 625.124The comprehensive scope of DOHSA is confirmed by its survival provision, see supra, at 122, which limits the recovery in such cases to the pecuniary losses suffered by surviving relatives. The Act thus expresses Congress' "considered judgment," Mobil Oil Corp. v. Higginbotham, supra, at 625, on the availability and contours of a survival action in cases of death on the high seas. For this reason, it cannot be contended that DOHSA has no bearing on survival actions; rather, Congress has simply chosen to adopt a more limited survival provision. Indeed, Congress did so in the same year that it incorporated into the Jones Act, which permits seamen injured in the course of their employment to recover damages for their injuries, a survival action similar to the one petitioners seek here. See Act of June 5, 1920, § 33, 41 Stat. 1007 (incorporating survival action of the Federal Employers' Liability Act, 45 U. S. C. § 59). Even in the exercise of our admiralty jurisdiction, we will not upset the balance struck by Congress by authorizing a cause of action with which Congress was certainly familiar but nonetheless declined to adopt.In sum, Congress has spoken on the availability of a survival action, the losses to be recovered, and the beneficiaries, in cases of death on the high seas. Because Congress has chosen not to authorize a survival action for a decedent's pre-death pain and suffering, there can be no general maritime survival action for such damages.2 The judgment of the Court of Appeals isAffirmed

OCTOBER TERM, 1997SyllabusDOOLEY, PERSONAL REPRESENTATIVE OF THE ESTATE OF CHUAPOCO, ET AL. v. KOREAN AIR LINES CO., LTD.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUITNo. 97-704. Argued April 27, 1998-Decided June 8,1998The Death on the Righ Seas Act (DORSA or Act) allows certain relatives of a decedent to sue for their own pecuniary losses, but does not authorize recovery for the decedent's pre-death pain and suffering. Petitioners, personal representatives of three passengers killed when Korean Air Lines Flight KE007 was shot down over the Sea of Japan, sued respondent airline (KAL) for, inter alia, damages for their decedents' pre-death pain and suffering. While their suit was pending, this Court decided in Zicherman v. Korean Air Lines Co., 516 U. S. 217-which arose out of the same disaster-that the Warsaw Convention permits compensation only for legally cognizable harm, but leaves the specification of what constitutes such harm to applicable domestic law, id., at 231; that DORSA supplies the applicable United States law where an airplane crashes on the high seas, ibid.; and that where DORSA applies, neither state nor general maritime law can permit recovery of loss-ofsociety damages, id., at 230. Subsequently, the District Court in this case granted KAUs motion to dismiss petitioners' nonpecuniary damages claims on the ground that DORSA does not permit recovery for such damages, including damages for a decedent's pre-death pain and suffering. In affirming, the Court of Appeals rejected petitioners' argument that general maritime law provides a survival action for pain and suffering damages, holding that Congress has decided who may sue and for what in cases of death on the high seas.Held: Because Congress has chosen not to authorize a survival action for a decedent's pre-death pain and suffering in a case of death on the high seas, there can be no general maritime survival action for such damages. Before Congress enacted DORSA, admiralty law did not permit an action to recover damages for a person's death. In DORSA, Congress authorized such a cause of action for certain surviving relatives in cases of death on the high seas, 46 U. S. C. App. § 761, but limited recovery to the survivors' own pecuniary losses, § 762. DORSA's limited survival provision also restricts recovery to the survivors' pecuniary losses. § 765. In Mobil Oil Corp. v. Higginbotham, 436 U. S. 618, this Court117held that, in a case of death on the high seas, a decedent's survivors could not recover damages under general maritime law for their loss of society, reasoning that, since DOHSA announced Congress' considered judgment on, inter alia, beneficiaries, survival, and damages, id., at 625, the Court had no authority to substitute its views for those expressed by Congress, id., at 626. Because Higginbotham involved only the scope of the remedies available in a wrongful-death action, it did not address the availability of other causes of action. However, petitioners err in contending that DOHSA is a wrongful-death statute with no bearing on the availability of a survival action. By authorizing only certain surviving relatives to recover damages, and by limiting damages to those relatives' pecuniary losses, Congress provided the exclusive recovery for deaths on the high seas. Petitioners concede that their action would expand the class of beneficiaries entitled to recovery and the recoverable damages; but Congress has already decided these issues and, thus, has precluded the judiciary from expanding either category. DOHSA's survival provision confirms the Act's comprehensive scope by expressing Congress' considered judgment on the availability and contours of a survival action in cases of death on the high seas. Congress has simply chosen to adopt a more limited survival provision than that urged by petitioners. Indeed, Congress did so in the same year that it incorporated a survival action similar to the one petitioners seek into the Jones Act, permitting seamen to recover damages for their own injuries. In the exercise of its admiralty jurisdiction, the Court will not upset the balance Congress struck by authorizing a cause of action with which Congress was certainly familiar but nonetheless declined to adopt. pp. 121-124.117 F.3d 1477, affirmed.THOMAS, J., delivered the opinion for a unanimous Court.Juanita M. Madole argued the cause and filed briefs for petitioners.Andrew J. Harakas argued the cause for respondent.With him on the brief was George N. Tompkins, Jr.Jeffrey P. Minear argued the cause for the United States as amicus curiae urging affirmance. On the brief were Solicitor General Waxman, Assistant Attorney General Hunger, Deputy Solicitor General Kneedler, David C. Frederick, Barbara B. O'Malley, and Bruce G. Forrest.118Full Text of Opinion

1968_9

MR. JUSTICE WHITE delivered the opinion of the Court.The single question of statutory construction presented by these cases is whether injuries to longshoremen occurring on piers permanently affixed to shore are compensable under the Longshoremen's and Harbor Workers' Compensation Act of 1927 (Longshoremen's Act), 44 Stat. 1424, 33 U.S.C. §§ 901-950.Johnson and Klosek were employed by the Nacirema Operating Company as longshoremen; Avery was similarly employed by the Old Dominion Stevedoring Corporation. All three men were engaged at the time of their accidents in performing similar operations as "slingers," attaching cargo from railroad cars located on piers [Footnote 1] to ships' cranes for removal to the ships. Klosek was killed, and each of the other men was injured, when cargo hoisted by the ship's crane swung back and knocked him to the pier or crushed him against the side of the Page 396 U. S. 214 railroad car. Deputy Commissioner of the United States Department of Labor denied claim for compensation in each case on the ground that the injuries had not occurred "upon the navigable waters of the United States" a required by the Act. [Footnote 2] The District Courts upheld the Deputy Commissioners' decisions. 243 F. Supp. 184 (D.C. Md.1965); 245 F. Supp. 51 (D.C.E.D. Va.1965). The Court of Appeals for the Fourth Circuit, sitting en banc, reversed. [Footnote 3] 398 F.2d 900 (1968). We granted certiorari, 393 U.S. 976 (1968), to resolve the resulting conflict with decisions in other circuits holding that pier injuries are not covered by the Act. [Footnote 4] We have concluded from an examination of the language, purpose, and legislative history of the Act, as well as prior decisions of this Court, that the judgment of the Court of Appeals must be reversed.Since long before the Longshoremen's Act was passed, it has been settled law that structures such as wharves Page 396 U. S. 215 and piers, permanently affixed to land, are extension of the land. [Footnote 5] Thus, literally read, a statute that cover injuries "upon the navigable waters" would not cover injuries on a pier even though the pier, like a bridge, extends over navigable waters. [Footnote 6]Respondents urge, however, that the 1927 Act, though it employs language that determines coverage by the "situs" of the injury, was nevertheless aimed at broader coverage: coverage of the "status" of the longshoreman employed in performing a maritime contract. We do not agree. Congress might have extended coverage to all longshoremen by exercising its power over maritime contracts. [Footnote 7] But the language of the Act is to the contrary Page 396 U. S. 216 and the background of the statute leaves little doubt that Congress' concern in providing compensation was a narrower one.Ten years before the Act was passed, this Court, in Southern Pacific Co. v. Jensen, 244 U. S. 205 (1917), held that a State was without power to extend a compensation remedy to a longshoreman injured on the gangplank between the ship and the pier. The decision left longshoremen injured on the seaward side of the pier without a compensation remedy, while longshoremen injured on the pier enjoyed the protection of state compensation acts. State Industrial Commission v. Nordenholt Corp., 259 U. S. 263 (1922).Twice Congress attempted to fill this gap by passing legislation that would have extended state compensation remedies beyond the line drawn in Jensen. [Footnote 8] Each time, this Court struck down the statute as an unlawful delegation of congressional power. Washington v. Dawson Co., 264 U. S. 219 (1924); Knickerbocker Ice Co. v. Stewart, 253 U. S. 149 (1920). Finally, responding to this Court's suggestion that what Congress could not empower the States to do, it could do itself, [Footnote 9] Congress passed the Longshoremen's Act. The clear implication is that, in enacting its own compensation statute, Congress Page 396 U. S. 217 was trying to do what it had failed to do in earlier attempts: to extend a compensation remedy to workmen injured beyond the pier and hence beyond the jurisdiction of the States. This purpose was clearly expressed in the language limiting coverage to injuries occurring "upon the navigable waters," and permitting recovery only "if recovery . . . through workmen's compensation proceedings may not validly be provided by State law." [Footnote 10]This conclusion is fully supported by the legislative history. As originally drafted, § 3 extended coverage to injuries"on a place within the admiralty jurisdiction of the United States, except employment of local concern and of no direct relation to navigation and commerce. [Footnote 11] During the hearings, it was repeatedly emphasized and apparently assumed by representatives from both the shipping industry and the unions that a 'place within the admiralty jurisdiction' did not include a dock or pier. [Footnote 12] In fact, a representative of the Labor Department Page 396 U. S. 218 objected to the bill precisely for that reason, urging the Committee to extend coverage to embrace the contract, 'and not the man simply when he is on the ship.' [Footnote 13] If Congress had intended to adopt that suggestion, it could not have chosen a more inappropriate way of expressing its intent than by substituting the words 'upon the navigable waters' for the words 'within the admiralty jurisdiction.' [Footnote 14] Indeed, the Senate Report that accompanied the revised bill, containing the language of the present Act, makes clear that the suggestion was rejected, rather than adopted:""[I]njuries occurring in Page 396 U. S. 219 loading or unloading are not covered unless they occur on the ship or between the wharf and the ship so as to bring them within the maritime jurisdiction of the United States."S.Rep. No. 973, 69th Cong., 1st Sess., 16. We decline to ignore these explicit indications of a design to provide compensation only beyond the pier where the States could not reach. "That is the gap that we are trying to fill." [Footnote 15] In filling that gap Congress did not extend coverage to longshoremen like those respondents whose injuries occurred on the landward side of the Jensen line, Page 396 U. S. 220 clearly entitling them to protection under state compensation Acts. [Footnote 16]Decisions of this Court have more than once embraced this interpretation. Swanson v. Marra Bros., Inc., 328 U. S. 1 (1946), held that neither the Jones Act nor the Longshoremen's Act covered a longshoreman injured on the dock in the course of his employment even if the injury was caused by a vessel on navigable waters. Parker v. Motor Boat Sales, 314 U. S. 244, 314 U. S. 249 (1941), concluded that the purpose of the Act "was to provide for federal compensation in the area which the specific decisions referred to placed beyond the reach of the states." Davis v. Dept. of Labor Industries, 317 U. S. 249, 317 U. S. 256 (1942), noted that, in passing the Longshoremen's Act, Congress had specifically adopted the Jensen line. The interpretation endorsed by these cases is also reflected in a consistent course of administrative construction commencing immediately after the enactment of the Act. Employees' Compensation Commission Opinions Nos. 5 and 16, 1927 A.M.C. 1558 and 1855; No. 30, 1928 A.M.C. 417.It is true that, since Jensen, this Court has permitted recovery under state remedies in particular situations seaward of the pier, Parker v. Motor Boat Sales, supra, and in Calbeck v. Travelers Insurance Co., 370 U. S. 114 (1962), approved recovery under the Longshoremen's Act for injuries occurring on navigable waters which might also have been compensable under state law. Calbeck made it clear that Congress intended to exercise its full jurisdiction seaward of the Jensen line Page 396 U. S. 221 and to cover all injuries on navigable waters, whether or not state compensation was also available in particular situations. The proviso to § 3(a) conditioning coverage on the unavailability of state remedies was not meant to deny federal relief where the injury occurred on navigable waters. But removing uncertainties as to the Act's coverage of injuries occurring on navigable waters is a far cry from construing the Act to reach injuries on land traditionally within the ambit of state compensation acts.Indeed, Calbeck freely cited the Parker and Davis declarations that the Longshoremen's Act adopted the Jensen line, and Calbeck's holding rejected the notion that the line should advance or recede simply because decisions of this Court had permitted state remedies in narrow areas seaward of that line. Otherwise, the reach of the federal Act would be subject to uncertainty, and its coverage would"expand and recede in harness with developments in constitutional interpretation as to the scope of state power to compensate injuries on navigable waters,"with the result "that every litigation raising an issue of federal coverage would raise an issue of constitutional dimension, with all that that implies. . . ." 370 U.S. at 370 U. S. 126. As in Calbeck, we refuse to impute to Congress the intent of burdening the administration of compensation by perpetuating such confusion.Nor can we agree that what Congress did not do in 1927, it did in 1948 when it passed the Extension of Admiralty Jurisdiction Act (Extension Act), 62 Stat. 496, 46 U.S.C. § 740. In pertinent part, that Act provides:"The admiralty and maritime jurisdiction of the United States shall extend to and include all cases of damage or injury, to person or property, caused Page 396 U. S. 222 by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land."By its very choice of language, the Act reenforces the conclusion that Congress was well aware of the distinction between land injuries and water injuries and that, when it limited recovery to injuries on navigable waters, it did not mean injuries on land. The Act no doubt extended the admiralty tort jurisdiction to ship caused injuries on a pier. But far from modifying the clear understanding in the law that a pier was an extension of land and that a pier injury was not on navigable waters, but on land, the Act accepts that rule and nevertheless declares such injuries to be maritime torts if caused by a vessel on navigable waters.The Extension Act was passed to remedy the completely different problem that arose from the fact that parties aggrieved by injuries done by ships to bridges, docks, and the like could not get into admiralty at all. [Footnote 17] There is no evidence that Congress thereby intended to amend or affect the coverage of the Longshoremen's Act or to overrule Swanson v. Marra Bros., supra, decided just two years earlier. [Footnote 18] While the Extension Page 396 U. S. 223 Act may have the effect of permitting respondents to maintain an otherwise unavailable libel in admiralty, [Footnote 19] see Gutierrez v. Waterman S.S. Corp., 373 U. S. 206 (1963), the Act has no bearing whatsoever on their right to a compensation remedy under the Longshoremen's Act.There is much to be said for uniform treatment of longshoremen injured while loading or unloading a ship. But even construing the Extension Act to amend the Longshoremen's Act would not effect this result, since longshoremen injured on a pier by pier-based equipment would still remain outside the Act. And construing the Longshoremen's Act to coincide with the limits of admiralty jurisdiction -- whatever they may be and however they may change -- simply replaces one line with another whose uncertain contours can only perpetuate on the landward side of the Jensen line, the same confusion that previously existed on the seaward side. While we have no doubt that Congress had the power to choose either of these paths in defining the coverage of its Page 396 U. S. 224 compensation remedy, the plain fact is that it chose instead the line in Jensen separating water from land at the edge of the pier. The invitation to move that line landward must be addressed to Congress, not to this Court.Reversed

U.S. Supreme CourtNacirema Operating Co., Inc. v. Johnson, 396 U.S. 212 (1969)Nacirema Operating Co., Inc. v. JohnsonNo. 9Argued March 25, 1969Reargued October 20, 1969Decided December 9, 1969*396 U.S. 212SyllabusOne longshoreman was killed and two others were injured on piers permanently affixed to shore in accidents that occurred while they were attaching cargo from railroad cars to ships' cranes. The District Court upheld denial of compensation claims under the Longshoremen's and Harbor Workers' Compensation Act of 1927. The Court of Appeals reversed.Held:1. The Longshoremen's Act, which covers injuries occurring "upon navigable waters," and furnishes a remedy only "if recovery . . . through workmen's compensation proceedings may not validly be provided by state law," does not provide compensation to workmen injured on a pier permanently affixed to the land, and hence clearly within the jurisdiction of the States. Pp. 396 U. S. 214-221.2. Though the Extension of Admiralty Jurisdiction Act extends admiralty tort jurisdiction to ship-caused injuries on a pier, it does not enlarge the coverage of the Longshoremen's Act. Pp. 396 U. S. 221-223.398 F.2d 90, reversed. Page 396 U. S. 213

1976_76-260

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.This appeal presents the question whether a political party officer can be removed from his position by the State of New York and barred for five years from holding any other party or public office because he has refused to waive his constitutional privilege against compelled self-incrimination.(1)Under § 22 of the New York Election Law, [Footnote 1] an officer of a Page 431 U. S. 803 political party may be subpoenaed by a grand jury or other authorized tribunal and required to testify concerning his conduct of the party office he occupies. If the officer refuses to answer any question, or if he declines to waive immunity from the use of his testimony against him in a later prosecution, the statute immediately terminates his party office and prohibits him from holding any other party or public office for a period of five years.In December, 1975, appellee Patrick J. Cunningham (hereafter appellee) was subpoenaed pursuant to § 22 to appear and testify before a special grand jury authorized to investigate his conduct in the political offices he then held, which consisted of four unsalaried elective positions in the Democratic Party of the State of New York. [Footnote 2] Appellee moved to quash the subpoena in the state courts, arguing in art that § 22 violated his federal constitutional right to be free of compelled self-incrimination; his motion was denied. In re Cunningham v. Nadjari, 51 App.Div.2d 927, 383 N.Y.S.2d 311, aff'd, 39 N.Y.2d 314, 347 N.E.2d 915 (1976). On April 12, 1976, he appeared before the grand jury in response to the subpoena. Appellee refused to sign a waiver of immunity form which would have waived his constitutional right not to be compelled to incriminate himself. [Footnote 3] Because § 22 is self-executing, appellee's Page 431 U. S. 804 refusal to waive his constitutional immunity automatically divested him of all his party offices and activated the five-year ban on holding any public or party office.The following day, appellee commenced this action in the United States District Court for the Southern District of New York. After hearing, the District Judge entered a temporary restraining order against enforcement of § 22. A three-judge court was then convened, and that court granted appellee declaratory and permanent injunctive relief against enforcement of § 22 on the ground that it violated appellee's Fifth and Fourteenth Amendment rights. We noted probable jurisdiction, 429 U.S. 893 (1976). We affirm.(2)We begin with the proposition that the Fifth Amendment privilege against compelled self-incrimination protects grand Page 431 U. S. 805 jury witnesses from being forced to give testimony which may later be used to convict them in a criminal proceeding. See, e.g., United States v. Washington, ante at 431 U. S. 186-187. Moreover, since the test is whether the testimony might later subject the witness to criminal prosecution, the privilege is available to a witness in a civil proceeding, as well as to a defendant in a criminal prosecution. Malloy v. Hogan, 378 U. S. 1, 378 U. S. 11 (1964). In either situation, the witness may"refuse to answer unless and until he is protected at least against the use of his compelled answers and evidence derived therefrom in any subsequent criminal case in which he is a defendant."Lefkowitz v. Turley, 414 U. S. 70, 414 U. S. 78 (1973).Thus, when a State compels testimony by threatening to inflict potent sanctions unless the constitutional privilege is surrendered, that testimony is obtained in violation of the Fifth Amendment and cannot be used against the declarant in a subsequent criminal prosecution. In Garrity v. New Jersey, 385 U. S. 493 (1967), for example, police officers under investigation were told that, if they declined to answer potentially incriminating questions, they would be removed from office, but that any answers they did give could be used against them in a criminal prosecution. We held that statements given under such circumstances were made involuntarily, and could not be used to convict the officers of crime.Similarly, our cases have established that a State may not impose substantial penalties because a witness elects to exercise his Fifth Amendment right not to give incriminating testimony against himself. In Gardner v. Broderick, 392 U. S. 273 (1968), a police officer appearing before a grand jury investigating official corruption was subject to discharge if he did not waive his Fifth Amendment privilege and answer, without immunity, all questions asked of him. When he refused, and his employment was terminated, this Court held that the officer could not be discharged solely for his refusal to forfeit the rights guaranteed him by the Fifth Amendment; the privilege against compelled self-incrimination Page 431 U. S. 806 could not abide any "attempt, regardless of its ultimate effectiveness, to coerce a waiver of the immunity it confers on penalty of the loss of employment." Id. at 392 U. S. 279. Accord, Sanitation Men v. Sanitation Comm'r, 392 U. S. 280 (1968). At the same time, the Court provided for effectuation of the important public interest in securing from public employees an accounting of their public trust. Public employees may constitutionally be discharged for refusing to answer potentially incriminating questions concerning their official duties if they have not been required to surrender their constitutional immunity. Gardner, supra at 392 U. S. 278-279.We affirmed the teaching of Gardner more recently in Lefkowitz v. Turley, supra, where two architects who did occasional work for the State of New York refused to waive their Fifth Amendment privilege before a grand jury investigating corruption in public contracting practices. State law provided that, if a contractor refused to surrender his constitutional privilege before a grand jury, his existing state contracts would be canceled and he would be barred from future contracts with the State for five years. The Court saw no constitutional distinction between discharging a public employee and depriving an independent contractor of the opportunity to secure public contracts; in both cases, the State had sought to compel testimony by imposing a sanction as the price of invoking the Fifth Amendment right.These cases settle that government cannot penalize assertion of the constitutional privilege against compelled self-incrimination by imposing sanctions to compel testimony which has not been immunized. It is true, as appellant points out, that our earlier cases were concerned with penalties having a substantial economic impact. But the touchstone of the Fifth Amendment is compulsion, and direct economic sanctions and imprisonment are not the only penalties capable of forcing the self-incrimination which the Amendment forbids. Page 431 U. S. 807(3)Section 22 confronted appellee with grave consequences solely because he refused to waive immunity from prosecution and give self-incriminating testimony. Section 22 is therefore constitutionally indistinguishable from the coercive provisions we struck down in Gardner, Sanitation Men, and Turley. Appellee's party offices carry substantial prestige and political influence, giving him a powerful voice in recommending or selecting candidates for office and in other political decisions. The threatened loss of such widely sought positions, with their power and perquisites, is inherently coercive. Additionally, compelled forfeiture of these posts diminishes appellee's general reputation in his community.There are also economic consequences; appellee's professional standing as a practicing lawyer would suffer by his removal from his political offices under these circumstances. Further, § 22 bars appellee from holding any other party or public office for five years. Many such offices carry substantial compensation. Appellant argues that appellee has no enforceable property interest in future office, but neither did the architects in Turley have an enforceable claim to future government contracts. Nevertheless, we found that disqualification from eligibility for such contracts was a substantial economic burden. In assessing the coercion which § 22 exerts, we must take into account potential economic benefits realistically likely of attainment. Prudent persons weigh heavily such legally unenforceable prospects in making decisions; to that extent, removal of those prospects constitutes economic coercion. [Footnote 4]Section 22 is coercive for yet another reason: it requires appellee to forfeit one constitutionally protected right as the Page 431 U. S. 808 price for exercising another. See Simmons v. United States, 390 U. S. 377, 390 U. S. 394 (1968). As an officer in a private political party, appellee is in a far different position from a government policymaking official holding office at the pleasure of the President or Governor. By depriving appellee of his offices, § 22 impinges on his right to participate in private, voluntary political associations. That right is an important aspect of First Amendment freedom which this Court has consistently found entitled to constitutional protection. Kusper v. Pontikes, 414 U. S. 51 (1973); Williams v. Rhodes, 393 U. S. 23 (1968). Appellant argues that even if § 22 is violative of Fifth Amendment rights, the State's overriding interest in preserving public confidence in the integrity of its political process justifies the constitutional infringement. We have already rejected the notion that citizens may be forced to incriminate themselves because it serves a governmental need. E.g., Lefkowitz v. Turley, 414 U.S. at 414 U. S. 78-79. Government has compelling interests in maintaining an honest police force and civil service, but this Court did not permit those interests to justify infringement of Fifth Amendment rights in Garrity, Gardner, and Sanitation Men, where alternative methods of promoting state aims were no more apparent than here. [Footnote 5](4)It may be, as appellant contends, that " [a] State Page 431 U. S. 809 forced to choose between an accounting from or a prosecution of a party officer is in an intolerable position." Brief for Appellant 12-13. But this dilemma is created by New York's transactional immunity law, which immunizes grand jury witnesses from prosecution for any transaction about which they testify. The more limited use immunity required by the Fifth Amendment would permit the State to prosecute appellee for any crime of which he may be guilty in connection with his party office, provided only that his own compelled testimony is not used to convict him. Once proper use immunity is granted, the State may use its contempt powers to compel testimony concerning the conduct of public office, without forfeiting the opportunity to prosecute the witness on the basis of evidence derived from other sources. Accordingly, the judgment isAffirmed

U.S. Supreme CourtLefkowitz v. Cunningham, 431 U.S. 801 (1977)Lefkowitz v. CunninghamNo. 76-260Argued February 28-March 1, 1977Decided June 13, 1977431 U.S. 801SyllabusA New York statute provides that, if an officer of a political party subpoenaed by a grand jury or other authorized tribunal to testify concerning the conduct of his office refuses to testify or to waive immunity against subsequent criminal prosecution, his term of office shall terminate and he shall be disqualified from holding any other party or public office for five years. Appellee, an attorney, was divested of his state political party offices pursuant to this statute when, in response to a subpoena, he appeared before a grand jury and refused to waive his constitutional immunity. He then brought suit in Federal District Court, which granted him declaratory and injunctive relief against enforcement of the statute on the ground that it violated his Fifth and Fourteenth Amendment rights.Held: The statute violated appellee's right to be free of compelled self-incrimination under the Fifth Amendment. Pp. 431 U. S. 804-809.(a) Government cannot penalize assertion of the constitutional privilege against compelled self-incrimination by imposing sanctions to compel testimony that has not been immunized. Pp. 431 U. S. 804-806.(b) The statute was coercive against appellee because it threatened him with loss of powerful offices and because the compelled forfeiture of those offices would diminish his general reputation in the community, would, as economic consequences, harm his professional standing as a practicing lawyer and bar him from holding any other party or public office for five years, and would impinge on his First Amendment right to participate in private, voluntary political associations. Pp. 431 U. S. 807-808.(c) The State's overriding interest in preserving public confidence in the integrity of its political process is insufficient to justify forcing its citizens to incriminate themselves. P. 431 U. S. 808.(d) The State's dilemma in being forced to choose between an accounting from, and a prosecution of, a party officer is created by its own transactional immunity law, whereas the more limited use immunity required by the Fifth Amendment would permit the State to compel Page 431 U. S. 802 testimony without forfeiting the opportunity to prosecute the witness on the basis of evidence derived from other sources. Pp. 431 U. S. 808-809.420 F. Supp. 1004, affirmed.BURGER, C.J., delivered the opinion of the Court, in which STEWART, WHITE, BLACKMUN, and POWELL, JJ., joined, and in all but Part (4) of which BRENNAN and MARSHALL, JJ., joined. BRENNAN, J., filed an opinion concurring in part, in which MARSHALL, J., joined, post, p. 431 U. S. 809. STEVENS, J., filed a dissenting opinion, post, p. 431 U. S. 810. REHNQUIST, J., took no part in the consideration or decision of the case.

1979_78-1588

PER CURIAM.The question presented in this unusual obscenity case is whether the United States Court of Appeals for the Fifth Circuit correctly held a Texas public nuisance statute unconstitutional. The Court of Appeals read the Texas statute as authorizing a prior restraint of indefinite duration on the exhibition of motion pictures without a final judicial determination of obscenity and without any guarantee of prompt review of a preliminary finding of probable obscenity. Cf. Freedman v. Maryland, 380 U. S. 51 (1965); Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546 (1975). In this Court, appellants argue that such a restraint is no more serious than that imposed by Texas' criminal statutes, and that it is therefore constitutional. We find appellants' argument unpersuasive, and affirm the judgment of the Court of Appeals.In 1973, appellee King Arts Theatre, Inc. (hereafter appellee), operated an indoor, adults-only motion picture theater. In October of that year, appellee's landlord gave notice that the theater's lease would be terminated. The notice stated that the County Attorney had informed the landlord that he intended to obtain an injunction to abate the theater as a public nuisance in order to prevent the future showing of allegedly obscene motion pictures. Appellee responded by filing suit in the United States District Court for the Northern District of Texas seeking an injunction and declaratory relief to forestall any action by the County Attorney under the Texas nuisance statutes. The case was transferred to a three-judge District Court sitting in the Southern District of Texas for consolidation with a number of other pending obscenity cases.Two different Texas statutes were in issue at that point. Page 445 U. S. 310 The first, Tex.Rev.Civ.Stat.Ann., Art. 4666 (Vernon 1952), [Footnote 1] authorizes injunction suits in the name of the State against alleged nuisances. If successful,"judgment shall be rendered abating said nuisance and enjoining the defendants from maintaining the same, and ordering that said house be closed for one year,"unless certain conditions are met. The second nuisance statute, Art. 4667(a) (Vernon Supp. 1978), provides that certain habitual uses of premises shall constitute a public nuisance and shall be enjoined at the suit of either the State or any citizen. Among the prohibited uses is "the commercial manufacturing, commercial distribution, or commercial exhibition of obscene material." [Footnote 2] Page 445 U. S. 311The three-judge District Court held that both of these statutes authorize state judges, on the basis of a showing that obscene films have been exhibited in the past, to prohibit the future exhibition of motion pictures that have not yet been found to be obscene. 404 F. Supp. 33 (1975). Recognizing that it is not unusual in nuisance litigation to prohibit future conduct on the basis of a finding of undesirable past or present conduct, the District Court read Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931), to require a special analysis when the prohibited future conduct may be protected by the First Amendment. [Footnote 3] The routine abatement procedure, which the District Court characterized as "the heavy hand of the public nuisance statute," was considered constitutionally deficient in the First Amendment context. Page 445 U. S. 312Specifically, the District Court noted that a general prohibition would operate as a prior restraint on unnamed motion pictures, and that even orders temporarily restraining the exhibition of specific films could be entered ex parte. [Footnote 4] Moreover, such a temporary restraining order could be extended by a temporary injunction based on a showing of probable success on the merits and without a final determination of obscenity. [Footnote 5] The District Court concluded that the nuisance statutes, when coupled with the Texas Rules of Civil Procedure governing injunctions, operate as an invalid prior restraint on the exercise of First Amendment rights.Because the three-judge District Court granted only declaratory, and not injunctive, relief, the State appealed to the United States Court of Appeals for the Fifth Circuit. See Gerstein v. Coe, 417 U. S. 279 (1974). A divided panel of that court reversed. 559 F.2d 1286 (1977) . The panel Page 445 U. S. 313 majority acknowledged that, if Art. 4666 authorized the closing of a motion picture theater for all uses for a year, it "would pose serious first amendment questions," 559 F.2d at 1290, but held that the District Court had misconstrued Art. 4666 in that it was not intended to apply to obscenity cases. [Footnote 6]The panel majority disagreed more fundamentally with the District Court's view of Art. 4667(a). It held that the injunction procedure authorized by that statute was "basically sound" in its application to an establishment such as appellee's:"The statute authorizes an injunction against the commercial manufacture, distribution or exhibition of obscene material only. Because the injunction follows, rather than precedes, a judicial determination that obscene material has been shown or distributed or manufactured on the premises, and because its prohibitions can apply only to further dealings with obscene and unprotected material, it does not constitute a prior restraint."559 F.2d at 1292 (emphasis in original). Further, the panel majority found no problem under Freedman v. Maryland, 380 U. S. 51 (1965), because any temporary restraint entered pending a final adjudication on the issue of obscenity would be imposed by a judge, not an administrative censor. The judgment of the District Court was therefore reversed. [Footnote 7] Page 445 U. S. 314The Court of Appeals granted rehearing en banc, and reversed the panel's holding that Art. 4667(a) is constitutional. 587 F.2d 159 (1978). [Footnote 8] The 8-to-6 majority found the statute objectionable because it"would allow the issuance of an injunction against the future exhibition of unnamed films that depict particular acts enumerated in the state's obscenity statute,"id. at 168, and "lacks the procedural safeguards required under Freedman v. Maryland, 380 U. S. 51. . . ." Id. at 169. [Footnote 9] The dissenters wrote that a pragmatic assessment of the statute's operation indicated that, once the contemplated injunction was in effect, it would impose no greater a prior restraint than a criminal statute forbidding exhibition of materials deemed obscene under Miller v. California, 413 U. S. 15 (1973). [Footnote 10]The Texas defendants appealed to this Court, and we noted probable jurisdiction. 442 U.S. 928. We limit our review Page 445 U. S. 315 to the two arguments advanced in appellants' brief: [Footnote 11] first, that an "obscenity injunction" under Art. 4667(a)(3) constitutes no greater a prior restraint than any criminal statute and, second, that the Court of Appeals erroneously held that no prior restraint of possible First Amendment materials is permissible.IThe Court of Appeals was quite correct in concluding both (a) that the regulation of a communicative activity such as the exhibition of motion pictures must adhere to more narrowly drawn procedures than is necessary for he abatement of an ordinary nuisance, [Footnote 12] and (b) that the burden of supporting Page 445 U. S. 316 an injunction against a future exhibition is even heavier than the burden of justifying the imposition of a criminal sanction for a past communication. [Footnote 13]As the District Court and the Court of Appeals construed Art. 4667(a), when coupled with the Texas Rules of Civil Procedure, it authorizes prior restraints of indefinite duration on the exhibition of motion pictures that have not been finally adjudicated to be obscene. [Footnote 14] Presumably, an exhibitor would be required to obey such an order pending review of its merits and would be subject to contempt proceedings even if the film is ultimately found to be nonobscene. [Footnote 15] Such prior restraints would be more onerous and more objectionable than the threat of criminal sanctions after a film has been exhibited, since nonobscenity would be a defense to any criminal prosecution. Page 445 U. S. 317Nor does the fact that the temporary prior restraint is entered by a state trial judge, rather than an administrative censor, sufficiently distinguish this case from Freedman v. Maryland. "Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 372 U. S. 70 (1963) (emphasis added). That a state trial judge might be thought more likely than an administrative censor to determine accurately that a work is obscene does not change the unconstitutional character of the restraint if erroneously entered.Accordingly, we agree with the Court of Appeals' conclusion that the absence of any special safeguards governing the entry and review of orders restraining the exhibition of named or unnamed motion pictures, without regard to the context in which they are displayed, precludes the enforcement of these nuisance statutes against motion picture exhibitors.Contrary to appellants' second argument, the Court of Appeals did not hold that there can never be a valid prior restraint on communicative activity. The Court of Appeals simply held that these Texas statutes were procedurally deficient, and that they authorize prior restraints that are more onerous than is permissible under Freedman v. Maryland and Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546 (1975).Because we find no merit in the contentions advanced on behalf of appellants, the judgment is affirmed.It is so ordered

U.S. Supreme CourtVance v. Universal Amusement Co., Inc., 445 U.S. 308 (1980)Vance v. Universal Amusement Co., Inc.No. 78-1588Argued November 28, 1979Decided March 18, 1980445 U.S. 308SyllabusHeld: A Texas public nuisance statute, construed as authorizing state judges, on the basis of a showing that a theater exhibited obscene films in the past, to enjoin its future exhibition of films not yet found to be obscene, is unconstitutional as authorizing an invalid prior restraint. The statute cannot be considered to be valid on the asserted ground that it constitutes no greater a prior restraint than any criminal statute, since presumably an exhibitor would be subject to contempt proceedings for violating a preliminary restraining order under the statute even if the film is ultimately found to be nonobscene, whereas nonobscenity would be a defense to any criminal prosecution. Nor is the statute saved merely because the temporary restraint is entered by a state trial judge, rather than an administrative censor. That a judge might be thought more likely than an administrative censor to determine accurately that a work is obscene does not change the unconstitutional character of the restraint if erroneously entered. Thus, the absence of any special safeguards governing the entry and review of orders restraining the exhibition of named or unnamed motion pictures, without regard to the context in which they are displayed, precludes the enforcement of the nuisance statute against motion picture exhibitors. Cf. Freedman v. Maryland, 380 U. S. 51; Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546.587 F.2d 159, affirmed. Page 445 U. S. 309

1996_96-270

that common questions "predominate over any questions affecting only individual members" and that class resolution be "superior to other available methods for the fair and efficient adjudication of the controversy." To alert Rule 23(b)(3) class members to their right to "opt out," Rule 23 requires "the best notice practicable under the circumstances." Rule 23(c)(2). Finally, Rule 23(e) specifies that a class action cannot be settled without the court's approval, and that notice of the proposed compromise must be given to all class members in such manner as the court directs. Pp. 613-619.(b) Because settlement is relevant to the propriety of class certification, the Third Circuit's statement that Rule 23(a) and (b)(3) "must be satisfied without taking into account the settlement" bears modification. But the Third Circuit did not, in fact, ignore the settlement. The court homed in on settlement terms in explaining why it found absentees' interests inadequately represented. The Third Circuit's inspection of the settlement agreement in that regard was altogether proper. Whether trial would present intractable management problems, see Rule 23(b)(3)(D), is not a consideration when settlement-only certification is requested, for the proposal is that there be no trial. But other specifications of the Rule designed to protect absentee class members by blocking unwarranted or overbroad class definitions are of vital importance in the settlement context, for the court in such a case will lack the opportunity to adjust the class as litigation unfolds. See Rule 23(c) and (d). And, of overriding importance, courts must be mindful that they are bound to enforce the Rule as now composed, for Federal Rules may be amended only through the extensive deliberative process Congress prescribed. Rule 23(e)'s settlement prescription was designed to function as an additional requirement, not a superseding direction, to the class-qualifying criteria of Rule 23(a) and (b). Cf. Eisen v. Carlisle & Jacquelin, 417 U. S. 156, 176-177. The dominant concern of Rule 23(a) and (b)-that a proposed class have sufficient unity so that absentees can fairly be bound by class representatives' decisions-persists when settlement, rather than trial, is proposed. Those subdivisions' safeguards provide practical checks in the settlement context. First, their standards serve to inhibit class certifications dependent upon the court's gestalt judgment or overarching impression of the settlement's fairness. Second, if a Rule 23(e) fairness inquiry controlled certification, eclipsing Rule 23(a) and (b), and permitting certification despite the impossibility of litigation, both class counsel and court would be disarmed. Class counsel confined to settlement negotiations could not use the threat of litigation to press for a better offer, and the court would face a bargain proffered for its approval without benefit of adversarial investigation. Federal courts, in any case, lack authority to sub-594Syllabusstitute for Rule 23's certification criteria a standard never adopted by the rulemakers-that if a settlement is "fair," then certification is proper. Pp. 619-622.(c) Rule 23(b)(3)'s predominance requirement is not met by the factors relied on by the District Court and the settling parties: class members' shared experience of asbestos exposure; their common interest in receiving prompt and fair compensation, while minimizing the risks and transaction costs inherent in the tort system's asbestos litigation process; and the settlement's fairness. The benefits asbestosexposed persons might gain from a grand-scale compensation scheme is a matter fit for legislative consideration, but it is not pertinent to the predominance inquiry. That inquiry trains on the legal or factual questions that qualify each class member's case as a genuine controversy, questions that preexist any settlement, and tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation. In contrast, the Rule 23(e) inquiry protects unnamed class members from unjust or unfair settlements agreed to by fainthearted or selfinterested class representatives; the Rule 23(e) prescription was not designed to assure the class cohesion that legitimizes representative action in the first place. If a common interest in a fair compromise could satisfy Rule 23(b)(3)'s predominance requirement, that vital prescription would be stripped of any meaning in the settlement context. The predominance criterion is not satisfied by class members' shared experience of asbestos exposure, given the greater number of questions peculiar to the several categories of class members, and to individuals within each category, and the significance of those uncommon questions. No settlement class called to the Court's attention is as sprawling as the one certified here. Although mass tort cases arising from a common cause or disaster may, depending upon the circumstances, satisfy the predominance requirement, the Advisory Committee for the 1966 Rule 23 revision advised that such cases are ordinarily not appropriate for class treatment, and warned district courts to exercise caution when individual stakes are high and disparities among class members great. The certification in this case does not follow the counsel of caution. That certification cannot be upheld, for it rests on a conception of Rule 23(b)(3)'s predominance requirement irreconcilable with the Rule's design. Pp. 622-625.(d) Nor can the class approved by the District Court satisfy Rule 23(a)(4)'s adequate representation inquiry. That inquiry serves to uncover conflicts of interest between named parties and the class they seek to represent. See General Telephone Co. of Southwest v. Falcon, 457 U. S. 147,157-158, n. 13. Representatives must be part of the class and possess the same interest and suffer the same injury as the class595members. E. g., East Tex. Motor Freight System, Inc. v. Rodriguez, 431 U. S. 395, 403. In this case, named parties with diverse medical conditions sought to act on behalf of a single giant class rather than on behalf of discrete subclasses. In significant respects, the interests of those within the single class are not aligned. Most saliently, for the currently injured, the critical goal is generous immediate payments. That goal tugs against the interest of exposure-only plaintiffs in ensuring an ample, inflation-protected fund for the future. Cf. General Telephone Co. of Northwest v. EEOC, 446 U. S. 318,331. The disparity between the currently injured and exposure-only categories of plaintiffs, and the diversity within each category, are not made insignificant by the District Court's finding that petitioners' assets suffice to pay settled claims. Although this is not a Rule 23(b)(I)(B) "limited fund" case, the settlement's terms--e. g., no inflation adjustments, only a few claimants per year permitted to opt out at the back end, and loss-of-consortium claims extinguished-reflect essential allocation decisions designed to confine compensation and to limit defendants' liability. Thus, the settling parties achieved a global compromise with no structural assurance of fair and adequate representation for the diverse groups and individuals affected. The Third Circuit found no assurance here that the named parties operated under a proper understanding of their representational responsibilities. That assessment is on the mark. Pp. 625-628.(e) In light of the conclusions that the class does not satisfy the requirements of common issue predominance and adequacy of representation, this Court need not rule, definitively, on the adequacy of the notice given here. The Court recognizes, however, the gravity of the question whether class-action notice sufficient under the Constitution and Rule 23 could ever be given to legions so unselfconscious and amorphous as the class certified by the District Court. P. 628.(f) The argument is sensibly made that a nationwide administrative claims processing regime would provide the most secure, fair, and efficient means of compensating victims of asbestos exposure. Congress, however, has not adopted such a solution. Rule 23, which must be interpreted with fidelity to the Rules Enabling Act and applied with the interests of absent class members in close view, cannot carry the large load the settling parties and the District Court heaped upon it. Pp.628-629.83 F.3d 610, affirmed.GINSBURG, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and SCALIA, KENNEDY, SOUTER, and THOMAS, JJ., joined. BREYER, J., filed an opinion concurring in part and dissenting in part, in which596STEVENS, J., joined, post, p. 629. O'CONNOR, J., took no part in the consideration or decision of the case.Stephen M. Shapiro argued the cause for petitioners.With him on the briefs were John D. Aldock, Elizabeth Runyan Geise, Richard M. Wyner, Kenneth S. Geller, Andrew J. Pincus, Charles A. Rothfeld, Eileen Penner, Robert H. Bork, Max Gitter, Blake Perkins, and Nancy B. Stone.Laurence H. Tribe argued the cause and filed a brief for respondent Windsor et al. With him on the brief were Brian Koukoutchos, Jonathan S. Massey, Frederick M. Baron, Brent M. Rosenthal, and Steve Baughman. Brad Seligman, Jocelyn D. Larkin, Donna M. Ryu, Sharon R. Vinick, and Steven Kazan filed a brief for respondent Cargile et al. Shepard A. Hoffman filed a brief for respondent Balonis et al. Ronald L. Motley, Joseph F. Rice, Nancy Worth Davis, Gene Locks, and Jonathan W Miller filed a brief for respondent Georgine et al. Brian Wolfman and Alan B. Morrison filed a brief for respondent White Lung Association of New Jersey et al.**Briefs of amici curiae urging reversal were filed for the National Association of Securities and Commercial Lawyers by Kevin P. Roddy, Clinton A. Krislov, and Robert J. Stein III; for the Chamber of Commerce of the United States by John H. Beisner, Brian D. Boyle, Stephen A. Bokat, and Robin S. Conrad; for Rhone-Poulenc Rorer Inc. et al. by Carter G. Phillips, Richard L. Berkman, and Fred T. Magaziner; and for the Washington Legal Foundation by Daniel J. Popeo.Briefs of amici curiae urging affirmance were filed for the State of New York et al. by Dennis C. Vacco, Attorney General of New York, Barbara Gott Billet, Solicitor General, Shirley F. Sarna, Nancy Spiegel, Joy Feigenbaum, and Jane M. Kimmel, Assistant Attorneys General, Daniel E. Lungren, Attorney General of California, Thomas F. Gede, Special Assistant Attorney General, and Albert Norman Shelden, Supervising Deputy Attorney General, Charles P. C. Ruff, Corporation Counsel of the District of Columbia, and by the Attorneys General of their respective jurisdictions as follows: Winston Bryant of Arkansas, M. Jane Brady of Delaware, Alan G. Lance of Idaho, Carla J. Stovall of Kansas, Albert B. Chandler III of Kentucky, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Joseph P. Mazurek of Montana, Frankie Sue Del Papa of Ne-597JUSTICE GINSBURG delivered the opinion of the Court. This case concerns the legitimacy under Rule 23 of the Federal Rules of Civil Procedure of a class-action certification sought to achieve global settlement of current and future asbestos-related claims. The class proposed for certification potentially encompasses hundreds of thousands, perhaps millions, of individuals tied together by this commonality: Each was, or some day may be, adversely affected by past exposure to asbestos products manufactured by one or more of 20 companies. Those companies, defendants in the lower courts, are petitioners here.The United States District Court for the Eastern District of Pennsylvania certified the class for settlement only, finding that the proposed settlement was fair and that representation and notice had been adequate. That court enjoined class members from separately pursuing asbestos-related personal-injury suits in any court, federal or state, pending the issuance of a final order. The Court of Appeals for the Third Circuit vacated the District Court's orders, holding that the class certification failed to satisfy Rule 23's requirements in several critical respects. We affirm the Court of Appeals' judgment.I AThe settlement-class certification we confront evolved in response to an asbestos-litigation crisis. See Georgine v. Amchem Products, Inc., 83 F.3d 610, 618, and n. 2 (CA3 1996) (citing commentary). A United States Judicial Con-vada, Michael F. Easley of North Carolina, Heidi Heitkamp of North Dakota, W A. Drew Edmondson of Oklahoma, James S. Gilmore III of Virginia, and Calvin E. Holloway, Sr., of Guam; for the Asbestos Victims of America by Maynard Ungerman; for the Association of Trial Lawyers of America by Jeffrey Robert White and Howard F. Twiggs; for Law Professors by Charles Silver and Samuel Issacharoff; for Owens-Illinois, Inc., by James D. Miller; and for Trial Lawyers for Public Justice by Leslie A. Brueckner and Arthur H. Bryant.598ference Ad Hoc Committee on Asbestos Litigation, appointed by THE CHIEF JUSTICE in September 1990, described facets of the problem in a 1991 report:"[This] is a tale of danger known in the 1930s, exposure inflicted upon millions of Americans in the 1940s and 1950s, injuries that began to take their toll in the 1960s, and a flood of lawsuits beginning in the 1970s. On the basis of past and current filing data, and because of a latency period that may last as long as 40 years for some asbestos related diseases, a continuing stream of claims can be expected. The final toll of asbestos related injuries is unknown. Predictions have been made of 200,000 asbestos disease deaths before the year 2000 and as many as 265,000 by the year 2015."The most objectionable aspects of asbestos litigation can be briefly summarized: dockets in both federal and state courts continue to grow; long delays are routine; trials are too long; the same issues are litigated over and over; transaction costs exceed the victims' recovery by nearly two to one; exhaustion of assets threatens and distorts the process; and future claimants may lose altogether." Report of The Judicial Conference Ad Hoc Committee on Asbestos Litigation 2-3 (Mar. 1991).Real reform, the report concluded, required federal legislation creating a national asbestos dispute-resolution scheme. See id., at 3, 27-35; see also id., at 42 (dissenting statement of Hogan, J.) (agreeing that "a national solution is the only answer" and suggesting "passage by Congress of an administrative claims procedure similar to the Black Lung legislation"). As recommended by the Ad Hoc Committee, the Judicial Conference of the United States urged Congress to act. See Report of the Proceedings of the Judicial Conference of the United States 33 (Mar. 12, 1991). To this date, no congressional response has emerged.599In the face of legislative inaction, the federal courts-lacking authority to replace state tort systems with a national toxic tort compensation regime-endeavored to work with the procedural tools available to improve management of federal asbestos litigation. Eight federal judges, experienced in the superintendence of asbestos cases, urged the Judicial Panel on Multidistrict Litigation (MDL Panel), to consolidate in a single district all asbestos complaints then pending in federal courts. Accepting the recommendation, the MDL Panel transferred all asbestos cases then filed, but not yet on trial in federal courts to a single district, the United States District Court for the Eastern District of Pennsylvania; pursuant to the transfer order, the collected cases were consolidated for pretrial proceedings before Judge Weiner. See In re Asbestos Products Liability Litigation (No. VI), 771 F. Supp. 415, 422-424 (JPML 1991).1 The order aggregated pending cases only; no authority resides in the MDL Panel to license for consolidated proceedings claims not yet filed.BAfter the consolidation, attorneys for plaintiffs and defendants formed separate steering committees and began settlement negotiations. Ronald L. Motley and Gene Locks-later appointed, along with Motley's law partner Joseph F. Rice, to represent the plaintiff class in this actioncochaired the Plaintiffs' Steering Committee. Counsel for the Center for Claims Resolution (CCR), the consortium of1 In a series of orders, the MDL Panel had previously denied other asbestos-case transfer requests. See In re Asbestos and Asbestos Insulation Material Products Liability Litigation, 431 F. Supp. 906,910 (JPML 1977); In re Asbestos Products Liability Litigation (No. II), MDL-416 (JPML Mar. 13, 1980) (unpublished order); In re Asbestos School Products Liability Litigation, 606 F. Supp. 713, 714 (JPML 1985); In re Ship Asbestos Products Liability Litigation, MDL-676 (JPML Feb. 4, 1986) (unpublished order); In re Leon Blair Asbestos Products Liability Litigation, MDL-702 (JPML Feb. 6, 1987) (unpublished order).60020 former asbestos manufacturers now before us as petitioners, participated in the Defendants' Steering Committee.2 Although the MDL Panel order collected, transferred, and consolidated only cases already commenced in federal courts, settlement negotiations included efforts to find a "means of resolving ... future cases." Record, Doc. 3, p. 2 (Memorandum in Support of Joint Motion for Conditional Class Certification); see also Georgine v. Amchem Products, Inc., 157 F. R. D. 246, 266 (ED Pa. 1994) ("primary purpose of the settlement talks in the consolidated MDL litigation was to craft a national settlement that would provide an alternative resolution mechanism for asbestos claims," including claims that might be filed in the future).In November 1991, the Defendants' Steering Committee made an offer designed to settle all pending and future asbestos cases by providing a fund for distribution by plaintiffs' counsel among asbestos-exposed individuals. The Plaintiffs' Steering Committee rejected this offer, and negotiations fell apart. CCR, however, continued to pursue "a workable administrative system for the handling of future claims." Id., at 270.To that end, CCR counsel approached the lawyers who had headed the Plaintiffs' Steering Committee in the unsuccessful negotiations, and a new round of negotiations began; that round yielded the mass settlement agreement now in controversy. At the time, the former heads of the Plaintiffs' Steering Committee represented thousands of plaintiffs with then-pending asbestos-related claims-claimants the parties2 The CCR Companies are Amchem Products, Inc.; A. P. Green Industries, Inc.; Armstrong World Industries, Inc.; Asbestos Claims Management Corp.; Certainteed Corp.; C. E. Thurston & Sons, Inc.; Dana Corp.; Ferodo America, Inc.; Flexitallic, Inc.; GAF Building Materials, Inc.; I. U. North America, Inc.; Maremont Corp.; National Services Industries, Inc.; Nosroc Corp.; Pfizer Inc.; Quigley Co.; Shook & Fletcher Insulation Co.; T & N, PLC; Union Carbide Corp.; and United States Gypsum Co. All of the CCR petitioners stopped manufacturing asbestos products around 1975.601to this suit call "inventory" plaintiffs. CCR indicated in these discussions that it would resist settlement of inventory cases absent "some kind of protection for the future." Id., at 294; see also id., at 295 (CCR communicated to the inventory plaintiffs' attorneys that once the CCR defendants saw a rational way to deal with claims expected to be filed in the future, those defendants would be prepared to address the settlement of pending cases).Settlement talks thus concentrated on devising an administrative scheme for disposition of asbestos claims not yet in litigation. In these negotiations, counsel for masses of inventory plaintiffs endeavored to represent the interests of the anticipated future claimants, although those lawyers then had no attorney-client relationship with such claimants.Once negotiations seemed likely to produce an agreement purporting to bind potential plaintiffs, CCR agreed to settle, through separate agreements, the claims of plaintiffs who had already filed asbestos-related lawsuits. In one such agreement, CCR defendants promised to pay more than $200 million to gain release of the claims of numerous inventory plaintiffs. After settling the inventory claims, CCR, together with the plaintiffs' lawyers CCR had approached, launched this case, exclusively involving persons outside the MDL Panel's province-plaintiffs without already pending lawsuits.3CThe class action thus instituted was not intended to be litigated. Rather, within the space of a single day, J anuary 15, 1993, the settling parties-CCR defendants and the representatives of the plaintiff class described below-presented to the District Court a complaint, an answer, a pro-3 It is basic to comprehension of this proceeding to notice that no transferred case is included in the settlement at issue, and no case covered by the settlement existed as a civil action at the time of the MDL Panel transfer.602posed settlement agreement, and a joint motion for conditional class certification.4The complaint identified nine lead plaintiffs, designating them and members of their families as representatives of a class comprising all persons who had not filed an asbestosrelated lawsuit against a CCR defendant as of the date the class action commenced, but who (1) had been exposedoccupationally or through the occupational exposure of a spouse or household member-to asbestos or products containing asbestos attributable to a CCR defendant, or (2) whose spouse or family member had been so exposed.5 Untold numbers of individuals may fall within this description. All named plaintiffs alleged that they or a member of their family had been exposed to asbestos-containing products of4 Also on the same day, the CCR defendants filed a third-party action against their insurers, seeking a declaratory judgment holding the insurers liable for the costs of the settlement. The insurance litigation, upon which implementation of the settlement is conditioned, is still pending in the District Court. See, e. g., Georgine v. Amchem Prods., Inc., No. 930215, 1994 WL 502475 (ED Pa., Sept. 2, 1994) (denying motion of insurers to compel discovery).5 The complaint defines the class as follows:"(a) All persons (or their legal representatives) who have been exposed in the United States or its territories (or while working aboard U. S. military, merchant, or passenger ships), either occupationally or through the occupational exposure of a spouse or household member, to asbestos or to asbestos-containing products for which one or more of the Defendants may bear legal liability and who, as of January 15, 1993, reside in the United States or its territories, and who have not, as of January 15, 1993, filed a lawsuit for asbestos-related personal injury, or damage, or death in any state or federal court against the Defendant(s) (or against entities for whose actions or omissions the Defendant(s) bear legal liability)."(b) All spouses, parents, children, and other relatives (or their legal representatives) of the class members described in paragraph (a) above who have not, as of January 15, 1993, filed a lawsuit for the asbestosrelated personal injury, or damage, or death of a class member described in paragraph (a) above in any state or federal court against the Defendantes) (or against entities for whose actions or omissions the Defendant(s) bear legal liability)." 1 App. 13-14.603CCR defendants. More than half of the named plaintiffs alleged that they or their family members had already suffered various physical injuries as a result of the exposure. The others alleged that they had not yet manifested any asbestos-related condition. The complaint delineated no subclasses; all named plaintiffs were designated as representatives of the class as a whole.The complaint invoked the District Court's diversity jurisdiction and asserted various state-law claims for relief, including (1) negligent failure to warn, (2) strict liability, (3) breach of express and implied warranty, (4) negligent infliction of emotional distress, (5) enhanced risk of disease, (6) medical monitoring, and (7) civil conspiracy. Each plaintiff requested unspecified damages in excess of $100,000. CCR defendants' answer denied the principal allegations of the complaint and asserted 11 affirmative defenses.A stipulation of settlement accompanied the pleadings; it proposed to settle, and to preclude nearly all class members from litigating against CCR companies, all claims not filed before January 15, 1993, involving compensation for present and future asbestos-related personal injury or death. An exhaustive document exceeding 100 pages, the stipulation presents in detail an administrative mechanism and a schedule of payments to compensate class members who meet defined asbestos-exposure and medical requirements. The stipulation describes four categories of compensable disease: mesothelioma; lung cancer; certain "other cancers" (colonrectal, laryngeal, esophageal, and stomach cancer); and "non-malignant conditions" (asbestosis and bilateral pleural thickening). Persons with "exceptional" medical claimsclaims that do not fall within the four described diagnostic categories-may in some instances qualify for compensation, but the settlement caps the number of "exceptional" claims CCR must cover.For each qualifying disease category, the stipulation specifies the range of damages CCR will pay to qualifying claim-604ants. Payments under the settlement are not adjustable for inflation. Mesothelioma claimants-the most highly compensated category-are scheduled to receive between $20,000 and $200,000. The stipulation provides that CCR is to propose the level of compensation within the prescribed ranges; it also establishes procedures to resolve disputes over medical diagnoses and levels of compensation.Compensation above the fixed ranges may be obtained for "extraordinary" claims. But the settlement places both numerical caps and dollar limits on such claims.6 The settlement also imposes "case flow maximums," which cap the number of claims payable for each disease in a given year.Class members are to receive no compensation for certain kinds of claims, even if otherwise applicable state law recognizes such claims. Claims that garner no compensation under the settlement include claims by family members of asbestos-exposed individuals for loss of consortium, and claims by so-called "exposure-only" plaintiffs for increased risk of cancer, fear of future asbestos-related injury, and medical monitoring. "Pleural" claims, which might be asserted by persons with asbestos-related plaques on their lungs but no accompanying physical impairment, are also excluded. Although not entitled to present compensation, exposure-only claimants and pleural claimants may qualify for benefits when and if they develop a compensable disease and meet the relevant exposure and medical criteria. Defendants forgo defenses to liability, including statute of limitations pleas.Class members, in the main, are bound by the settlement in perpetuity, while CCR defendants may choose to with-6 Only three percent of the qualified mesothelioma, lung cancer, and "other cancer" claims, and only one percent of the total number of qualified "non-malignant condition" claims can be designated "extraordinary." Average expenditures are specified for claims found "extraordinary"; mesothelioma victims with compensable extraordinary claims, for example, receive, on average, $300,000.605draw from the settlement after ten years. A small number of class members-only a few per year-may reject the settlement and pursue their claims in court. Those permitted to exercise this option, however, may not assert any punitive damages claim or any claim for increased risk of cancer. Aspects of the administration of the settlement are to be monitored by the AFL-CIO and class counsel. Class counsel are to receive attorneys' fees in an amount to be approved by the District Court.DOn January 29, 1993, as requested by the settling parties, the District Court conditionally certified, under Federal Rule of Civil Procedure 23(b)(3), an encompassing opt-out class. The certified class included persons occupationally exposed to defendants' asbestos products, and members of their families, who had not filed suit as of January 15. Judge Weiner appointed Locks, Motley, and Rice as class counsel, noting that "[t]he Court may in the future appoint additional counsel if it is deemed necessary and advisable." Record, Doc. 11, p. 3 (Class Certification Order). At no stage of the proceedings, however, were additional counsel in fact appointed. Nor was the class ever divided into subclasses. In a separate order, Judge Weiner assigned to Judge Reed, also of the Eastern District of Pennsylvania, "the task of conducting fairness proceedings and of determining whether the proposed settlement is fair to the class." See 157 F. R. D., at 258. Various class members raised objections to the settlement stipulation, and Judge Weiner granted the objectors full rights to participate in the subsequent proceedings. Ibid.77These objectors, now respondents before this Court, include three groups of individuals with overlapping interests, designated as the "Windsor Group," the New Jersey "White Lung Group," and the "Cargile Group." Margaret Balonis, an individual objector, is also a respondent before this Court. Balonis states that her husband, Casimir, was exposed to asbestos in the late 1940's and was diagnosed with mesothelioma in May606In preliminary rulings, Judge Reed held that the District Court had subject-matter jurisdiction, see Carlough v. Amchem Products, Inc., 834 F. Supp. 1437, 1467-1468 (ED Pa. 1993), and he approved the settling parties' elaborate plan for giving notice to the class, see Carlough v. Amchem Products, Inc., 158 F. R. D. 314, 336 (ED Pa. 1993). The courtapproved notice informed recipients that they could exclude themselves from the class, if they so chose, within a threemonth opt-out period.Objectors raised numerous challenges to the settlement.They urged that the settlement unfairly disadvantaged those without currently compensable conditions in that it failed to adjust for inflation or to account for changes, over time, in medical understanding. They maintained that compensation levels were intolerably low in comparison to awards available in tort litigation or payments received by the inventory plaintiffs. And they objected to the absence of any compensation for certain claims, for example, medical monitoring, compensable under the tort law of several States. Rejecting these and all other objections, Judge Reed concluded that the settlement terms were fair and had been negotiated without collusion. See 157 F. R. D., at 325,331-332. He also found that adequate notice had been given to class members, see id., at 332-334, and that final class certification under Rule 23(b)(3) was appropriate, see id., at 315.As to the specific prerequisites to certification, the District Court observed that the class satisfied Rule 23(a)(1)'s numerosity requirement,S see ibid., a matter no one debates. The1994, after expiration of the opt-out period, see infra this page and 608. The Balonises sued CCR members in Maryland state court, but were charged with civil contempt for violating the Federal District Court's antisuit injunction. Casimir Balonis died in October 1996. See Brief for Balonis Respondents 9-11.8 Rule 23(a)(1) requires that the class be "so numerous that joinder of all members is impracticable."607Rule 23(a)(2) and (b)(3) requirements of commonality9 and preponderance 10 were also satisfied, the District Court held, in that"[t]he members of the class have all been exposed to asbestos products supplied by the defendants and all share an interest in receiving prompt and fair compensation for their claims, while minimizing the risks and transaction costs inherent in the asbestos litigation process as it occurs presently in the tort system. Whether the proposed settlement satisfies this interest and is otherwise a fair, reasonable and adequate compromise of the claims of the class is a predominant issue for purposes of Rule 23(b)(3)." Id., at 316.The District Court held next that the claims of the class representatives were "typical" of the class as a whole, a requirement of Rule 23(a)(3),11 and that, as Rule 23(b)(3) demands,12 the class settlement was "superior" to other methods of adjudication. See ibid.Strenuous objections had been asserted regarding the adequacy of representation, a Rule 23(a)(4) requirementP Objectors maintained that class counsel and class representatives had disqualifying conflicts of interests. In particular, objectors urged, claimants whose injuries had become manifest and claimants without manifest injuries should not have common counsel and should not be aggregated in a single9 Rule 23(a)(2) requires that there be "questions of law or fact common to the class."10 Rule 23(b)(3) requires that "the [common] questions of law or fact ... predominate over any questions affecting only individual members."11 Rule 23(a)(3) states that "the claims ... of the representative parties [must be] typical of the claims ... of the class."12 Rule 23(b)(3) requires that "a class action [be] superior to other available methods for the fair and efficient adjudication of the controversy." 13 Rule 23(a)(4) requires that "the representative parties will fairly and adequately protect the interests of the class."608class. Furthermore, objectors argued, lawyers representing inventory plaintiffs should not represent the newly formed class.Satisfied that class counsel had ably negotiated the settlement in the best interests of all concerned, and that the named parties served as adequate representatives, the District Court rejected these objections. See id., at 317-319, 326-332. Subclasses were unnecessary, the District Court held, bearing in mind the added cost and confusion they would entail and the ability of class members to exclude themselves from the class during the three-month opt-out period. See id., at 318-319. Reasoning that the representative plaintiffs "have a strong interest that recovery for all of the medical categories be maximized because they may have claims in any, or several categories," the District Court found "no antagonism of interest between class members with various medical conditions, or between persons with and without currently manifest asbestos impairment." Id., at 318. Declaring class certification appropriate and the settlement fair, the District Court preliminarily enjoined all class members from commencing any asbestos-related suit against the CCR defendants in any state or federal court. See Georgine v. Amchem Products, Inc., 878 F. Supp. 716, 726-727 (ED Pa. 1994).The objectors appealed. The United States Court of Appeals for the Third Circuit vacated the certification, holding that the requirements of Rule 23 had not been satisfied. See 83 F.3d 610 (1996).EThe Court of Appeals, in a long, heavily detailed opinion by Judge Becker, first noted several challenges by objectors to justiciability, subject-matter jurisdiction, and adequacy of notice. These challenges, the court said, raised "serious concerns." Id., at 623. However, the court observed, "the jurisdictional issues in this case would not exist but for the [class-action] certification." Ibid. Turning to the class-609certification issues and finding them dispositive, the Third Circuit declined to decide other questions.On class-action prerequisites, the Court of Appeals referred to an earlier Third Circuit decision, In re General Motors Corp. Pick-Up Truck Fuel Tank Products Liability Litigation, 55 F.3d 768, cert. denied, 516 U. S. 824 (1995) (hereinafter GM Trucks), which held that although a class action may be certified for settlement purposes only, Rule 23(a)'s requirements must be satisfied as if the case were going to be litigated. 55 F. 3d, at 799-800. The same rule should apply, the Third Circuit said, to class certification under Rule 23(b)(3). See 83 F. 3d, at 625. But cf. In re Asbestos Litigation, 90 F.3d 963, 975-976, and n. 8 (CA5 1996), cert. pending, Nos. 96-1379, 96-1394. While stating that the requirements of Rule 23(a) and (b)(3) must be met "without taking into account the settlement," 83 F. 3d, at 626, the Court of Appeals in fact closely considered the terms of the settlement as it examined aspects of the case under Rule 23 criteria. See id., at 630-634.The Third Circuit recognized that Rule 23(a)(2)'s "commonality" requirement is subsumed under, or superseded by, the more stringent Rule 23(b)(3) requirement that questions common to the class "predominate over" other questions. The court therefore trained its attention on the "predominance" inquiry. See id., at 627. The harmfulness of asbestos exposure was indeed a prime factor common to the class, the Third Circuit observed. See id., at 626, 630. But uncommon questions abounded.In contrast to mass torts involving a single accident, class members in this case were exposed to different asbestoscontaining products, in different ways, over different periods, and for different amounts of time; some suffered no physical injury, others suffered disabling or deadly diseases. See id., at 626, 628. "These factual differences," the Third Circuit explained, "translate[d] into significant legal differences." Id., at 627. State law governed and varied widely610on such critical issues as "viability of [exposure-only] claims [and] availability of causes of action for medical monitoring, increased risk of cancer, and fear of future injury." Ibid. 14 "[T]he number of uncommon issues in this humongous class action," the Third Circuit concluded, ibid., barred a determination, under existing tort law, that common questions predominated, see id., at 630.The Court of Appeals next found that "serious intra-class conflicts preclude[d] thee] class from meeting the adequacy of representation requirement" of Rule 23(a)(4). Ibid. Adverting to, but not resolving charges of attorney conflict of interests, the Third Circuit addressed the question whether the named plaintiffs could adequately advance the interests of all class members. The Court of Appeals acknowledged that the District Court was certainly correct to this extent: "'[T]he members of the class are united in seeking the maximum possible recovery for their asbestos-related claims.'" Ibid. (quoting 157 F. R. D., at 317). "But the settlement does more than simply provide a general recovery fund," the Court of Appeals immediately added; "[r]ather, it makes important judgments on how recovery is to be allocated among different kinds of plaintiffs, decisions that necessarily favor some claimants over others." 83 F. 3d, at 630.In the Third Circuit's view, the "most salient" divergence of interests separated plaintiffs already afflicted with an asbestos-related disease from plaintiffs without manifest injury (exposure-only plaintiffs). The latter would rationally want protection against inflation for distant recoveries. See ibid. They would also seek sturdy back-end opt-out rights and "causation provisions that can keep pace with changing14 Recoveries under the laws of different States spanned a wide range.Objectors assert, for example, that 15 percent of current mesothelioma claims arise in California, where the statewide average recovery is $419,674-or more than 209 percent above the $200,000 maximum specified in the settlement for mesothelioma claims not typed "extraordinary." See Brief for Respondents George Windsor et al. 5-6, n. 5 (citing 2 App. 461).611science and medicine, rather than freezing in place the science of 1993." Id., at 630-631. Already injured parties, in contrast, would care little about such provisions and would rationally trade them for higher current payouts. See id., at 631. These and other adverse interests, the Court of Appeals carefully explained, strongly suggested that an undivided set of representatives could not adequately protect the discrete interests of both currently afflicted and exposureonly claimants.The Third Circuit next rejected the District Court's determination that the named plaintiffs were "typical" of the class, noting that this Rule 23(a)(3) inquiry overlaps the adequacy of representation question: "both look to the potential for conflicts in the class." Id., at 632. Evident conflict problems, the court said, led it to hold that "no set of representatives can be 'typical' of this class." Ibid.The Court of Appeals similarly rejected the District Court's assessment of the superiority of the class action. The Third Circuit initially noted that a class action so large and complex "could not be tried." Ibid. The court elaborated most particularly, however, on the unfairness of binding exposure-only plaintiffs who might be unaware of the class action or lack sufficient information about their exposure to make a reasoned decision whether to stay in or opt out. See id., at 633. "A series of statewide or more narrowly defined adjudications, either through consolidation under Rule 42(a) or as class actions under Rule 23, would seem preferable," the Court of Appeals said. Id., at 634.The Third Circuit, after intensive review, ultimately ordered decertification of the class and vacation of the District Court's anti suit injunction. Id., at 635. Judge Wellford concurred, "fully subscrib[ing] to the decision of Judge Becker that the plaintiffs in this case ha[d] not met the requirements of Rule 23." Ibid. He added that in his view, named exposure-only plaintiffs had no standing to pursue the612suit in federal court, for their depositions showed that "[t]hey claimed no damages and no present injury." Id., at 638.We granted certiorari, 519 U. S. 957 (1996), and now affirm.IIObjectors assert in this Court, as they did in the District Court and Court of Appeals, an array of jurisdictional barriers. Most fundamentally, they maintain that the settlement proceeding instituted by class counsel and CCR is not a justiciable case or controversy within the confines of Article III of the Federal Constitution. In the main, they say, the proceeding is a nonadversarial endeavor to impose on countless individuals without currently ripe claims an administrative compensation regime binding on those individuals if and when they manifest injuries.Furthermore, objectors urge that exposure-only claimants lack standing to sue: Either they have not yet sustained any cognizable injury or, to the extent the complaint states claims and demands relief for emotional distress, enhanced risk of disease, and medical monitoring, the settlement provides no redress. Objectors also argue that exposureonly claimants did not meet the then-current amount-incontroversy requirement (in excess of $50,000) specified for federal-court jurisdiction based upon diversity of citizenship. See 28 U. S. C. § 1332(a).As earlier recounted, see supra, at 608, the Third Circuit declined to reach these issues because they "would not exist but for the [class-action] certification." 83 F. 3d, at 623. We agree that "[t]he class certification issues are dispositive," ibid.; because their resolution here is logically antecedent to the existence of any Article III issues, it is appropriate to reach them first, cf. Arizonans for Official English v. Arizona, 520 U. S. 43, 66-67 (1997) (declining to resolve definitively question whether petitioners had standing because mootness issue was dispositive of the case). We therefore follow the path taken by the Court of Appeals, mindful that613Rule 23's requirements must be interpreted in keeping with Article III constraints, and with the Rules Enabling Act, which instructs that rules of procedure "shall not abridge, enlarge or modify any substantive right," 28 U. S. C. § 2072(b). See also Fed. Rule Civ. Proc. 82 ("rules shall not be construed to extend ... the [subject-matter] jurisdiction of the United States district courts").15IIITo place this controversy in context, we briefly describe the characteristics of class actions for which the Federal Rules provide. Rule 23, governing federal-court class actions, stems from equity practice and gained its current shape in an innovative 1966 revision. See generally Kaplan, Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rules of Civil Procedure (1), 81 Harv. L. Rev. 356, 375-400 (1967) (hereinafter Kaplan, Continuing Work). Rule 23(a) states four threshold requirements applicable to all class actions: (1) numerosity (a "class [so large] that joinder of all members is impracticable"); (2) commonality ("questions of law or fact common to the class"); (3) typicality (named parties' claims or defenses "are typical ... of the class"); and (4) adequacy of representation (representatives "will fairly and adequately protect the interests of the class").15 The opinion dissenting in part does not find the class-certification issues dispositive-at least not yet, and would return the case to the Third Circuit for a second look. See post, at 630-631, 641. If certification issues were genuinely in doubt, however, the jurisdictional issues would loom larger. Concerning objectors' assertions that exposure-only claimants do not satisfy the $50,000 amount-in-controversy and may have no currently ripe claim, see Metro-North Commuter R. Co. v. Buckley, ante, p. 424 (Federal Employers' Liability Act, 35 Stat. 65, as amended, 45 U. S. C. § 51 et seq., interpreted in light of common-law principles, does not permit "exposure-only" railworker to recover for negligent infliction of emotional distress or lump-sum damages for costs of medical monitoring).614In addition to satisfying Rule 23(a)'s prerequisites, parties seeking class certification must show that the action is maintainable under Rule 23(b)(1), (2), or (3). Rule 23(b)(1) covers cases in which separate actions by or against individual class members would risk establishing "incompatible standards of conduct for the party opposing the class," Fed. Rule Civ. Proc. 23(b)(1)(A), or would "as a practical matter be dispositive of the interests" of nonparty class members "or substantially impair or impede their ability to protect their interests," Rule 23(b)(1)(B). Rule 23(b)(1)(A) "takes in cases where the party is obliged by law to treat the members of the class alike (a utility acting toward customers; a government imposing a tax), or where the party must treat all alike as a matter of practical necessity (a riparian owner using water as against downriver owners)." Kaplan, Continuing Work 388 (footnotes omitted). Rule 23(b)(1)(B) includes, for example, "limited fund" cases, instances in which numerous persons make claims against a fund insufficient to satisfy all claims. See Advisory Committee's Notes on Fed. Rule Civ. Proc. 23, 28 U. S. C. App., pp. 696-697 (hereinafter Adv. Comm. Notes).Rule 23(b)(2) permits class actions for declaratory or injunctive relief where "the party opposing the class has acted or refused to act on grounds generally applicable to the class." Civil rights cases against parties charged with unlawful, class-based discrimination are prime examples. Adv. Comm. Notes, 28 U. S. C. App., p. 697; see Kaplan, Continuing Work 389 (subdivision (b)(2) "build[s] on experience mainly, but not exclusively, in the civil rights field").In the 1966 class-action amendments, Rule 23(b)(3), the category at issue here, was "the most adventuresome" innovation. See Kaplan, A Prefatory Note, 10 B. C. Ind. & Com. L. Rev. 497, 497 (1969) (hereinafter Kaplan, Prefatory Note). Rule 23(b)(3) added to the complex-litigation arsenal class actions for damages designed to secure judgments binding all class members save those who affirmatively elected to be615excluded. See 7 A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 1777, p. 517 (2d ed. 1986) (hereinafter Wright, Miller, & Kane); see generally Kaplan, Continuing Work 379-400. Rule 23(b)(3) "opt-out" class actions superseded the former "spurious" class action, so characterized because it generally functioned as a permissive joinder ("opt-in") device. See 7 A Wright, Miller, & Kane § 1753, at 28-31, 42-44; see also Adv. Comm. Notes, 28 U. S. C. App., p.695.Framed for situations in which "class-action treatment is not as clearly called for" as it is in Rule 23(b)(1) and (b)(2) situations, Rule 23(b)(3) permits certification where class suit "may nevertheless be convenient and desirable." Adv. Comm. Notes, 28 U. S. C. App., p. 697. To qualify for certification under Rule 23(b)(3), a class must meet two requirements beyond the Rule 23(a) prerequisites: Common questions must "predominate over any questions affecting only individual members"; and class resolution must be "superior to other available methods for the fair and efficient adjudication of the controversy." In adding "predominance" and "superiority" to the qualification-for-certification list, the Advisory Committee sought to cover cases "in which a class action would achieve economies of time, effort, and expense, and promote ... uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results." Ibid. Sensitive to the competing tugs of individual autonomy for those who might prefer to go it alone or in a smaller unit, on the one hand, and systemic efficiency on the other, the Reporter for the 1966 amendments cautioned: "The new provision invites a close look at the case before it is accepted as a class action .... " Kaplan, Continuing Work 390.Rule 23(b)(3) includes a nonexhaustive list of factors pertinent to a court's "close look" at the predominance and superiority criteria:616"(A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action."In setting out these factors, the Advisory Committee for the 1966 reform anticipated that in each case, courts would "consider the interests of individual members of the class in controlling their own litigations and carrying them on as they see fit." Adv. Comm. Notes, 28 U. S. C. App., p. 698. They elaborated:"The interests of individuals in conducting separate lawsuits may be so strong as to call for denial of a class action. On the other hand, these interests may be theoretic rather than practical; the class may have a high degree of cohesion and prosecution of the action through representatives would be quite unobjectionable, or the amounts at stake for individuals may be so small that separate suits would be impracticable." Ibid.See also Kaplan, Continuing Work 391 ("Th[e] interest [in individual control] can be high where the stake of each member bulks large and his will and ability to take care of himself are strong; the interest may be no more than theoretic where the individual stake is so small as to make a separate action impracticable." (footnote omitted)). As the Third Circuit observed in the instant case: "Each plaintiff [in an action involving claims for personal injury and death] has a significant interest in individually controlling the prosecution of [his case]"; each "ha[s] a substantial stake in making individual decisions on whether and when to settle." 83 F. 3d, at 633.617While the text of Rule 23(b)(3) does not exclude from certification cases in which individual damages run high, the Advisory Committee had dominantly in mind vindication of "the rights of groups of people who individually would be without effective strength to bring their opponents into court at all." Kaplan, Prefatory Note 497. As concisely recalled in a recent Seventh Circuit opinion:"The policy at the very core of the class action mechanism is to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights. A class action solves this problem by aggregating the relatively paltry potential recoveries into something worth someone's (usually an attorney's) labor." Mace v. Van Ru Credit Corp., 109 F.3d 338, 344 (1997).To alert class members to their right to "opt out" of a (b)(3) class, Rule 23 instructs the court to "direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort." Fed. Rule Civ. Proc. 23(c)(2); see Eisen v. Carlisle & Jacquelin, 417 U. S. 156, 173-177 (1974) (individual notice to class members identifiable through reasonable effort is mandatory in (b)(3) actions; requirement may not be relaxed based on high cost).No class action may be "dismissed or compromised without [court] approval," preceded by notice to class members. Fed. Rule Civ. Proc. 23(e). The Advisory Committee's sole comment on this terse final provision of Rule 23 restates the Rule's instruction without elaboration: "Subdivision (e) requires approval of the court, after notice, for the dismissal or compromise of any class action." Adv. Comm. Notes, 28 U. S. C. App., p. 699.In the decades since the 1966 revision of Rule 23, classaction practice has become ever more "adventuresome" as a means of coping with claims too numerous to secure their618"just, speedy, and inexpensive determination" one by one. See Fed. Rule Civ. Proc. 1. The development reflects concerns about the efficient use of court resources and the conservation of funds to compensate claimants who do not line up early in a litigation queue. See generally J. Weinstein, Individual Justice in Mass Tort Litigation: The Effect of Class Actions, Consolidations, and Other Multiparty Devices (1995); Schwarzer, Settlement of Mass Tort Class Actions:Order out of Chaos, 80 Cornell L. Rev. 837 (1995).Among current applications of Rule 23(b)(3), the "settlement only" class has become a stock device. See, e. g., T. Willging, L. Hooper, & R. Niemic, Empirical Study of Class Actions in Four Federal District Courts: Final Report to the Advisory Committee on Civil Rules 61-62 (1996) (noting large number of such cases in districts studied). Although all Federal Circuits recognize the utility of Rule 23(b)(3) settlement classes, courts have divided on the extent to which a proffered settlement affects court surveillance under Rule 23's certification criteria.In GM Trucks, 55 F. 3d, at 799-800, and in the instant case, 83 F. 3d, at 624-626, the Third Circuit held that a class cannot be certified for settlement when certification for trial would be unwarranted. Other courts have held that settlement obviates or reduces the need to measure a proposed class against the enumerated Rule 23 requirements. See, e. g., In re Asbestos Litigation, 90 F. 3d, at 975 (CA5) ("in settlement class context, common issues arise from the settlement itself") (citing H. Newberg & A. Conte, 2 Newberg on Class Actions § 11.28, p. 11-58 (3d ed. 1992)); White v. National Football League, 41 F.3d 402, 408 (CA8 1994) ("adequacy of class representation ... is ultimately determined by the settlement itself"), cert. denied, 515 U. S. 1137 (1995); In re A. H. Robins Co., 880 F.2d 709, 740 (CA4) ("[i]f not a ground for certification per se, certainly settlement should be a factor, and an important factor, to be considered when determining certification"), cert. denied sub nom. Anderson619v. Aetna Casualty & Surety Co., 493 U. S. 959 (1989); Malchman v. Davis, 761 F.2d 893, 900 (CA2 1985) (certification appropriate, in part, because "the interests of the members of the broadened class in the settlement agreement were commonly held"), cert. denied, 475 U. S. 1143 (1986).A proposed amendment to Rule 23 would expressly authorize settlement class certification, in conjunction with a motion by the settling parties for Rule 23(b)(3) certification, "even though the requirements of subdivision (b)(3) might not be met for purposes of trial." Proposed Amendment to Fed. Rule Civ. Proc. 23(b), 117 S. Ct. No. 1 CXIX, CLIV to CLV (Aug. 1996) (Request for Comment). In response to the publication of this proposal, voluminous public comments-many of them opposed to, or skeptical of, the amendment-were received by the Judicial Conference Standing Committee on Rules of Practice and Procedure. See, e. g., Letter from Steering Committee to Oppose Proposed Rule 23, signed by 129 law professors (May 28, 1996); Letter from Paul D. Carrington (May 21, 1996). The Committee has not yet acted on the matter. We consider the certification at issue under the Rule as it is currently framed.IVWe granted review to decide the role settlement may play, under existing Rule 23, in determining the propriety of class certification. The Third Circuit's opinion stated that each of the requirements of Rule 23(a) and (b)(3) "must be satisfied without taking into account the settlement." 83 F. 3d, at 626 (quoting GM Trucks, 55 F. 3d, at 799). That statement, petitioners urge, is incorrect.We agree with petitioners to this limited extent: Settlement is relevant to a class certification. The Third Circuit's opinion bears modification in that respect. But, as we earlier observed, see supra, at 609, the Court of Appeals in fact did not ignore the settlement; instead, that court homed in on settlement terms in explaining why it found the absentees'620interests inadequately represented. See 83 F. 3d, at 630631. The Third Circuit's close inspection of the settlement in that regard was altogether proper.Confronted with a request for settlement-only class certification, a district court need not inquire whether the case, if tried, would present intractable management problems, see Fed. Rule Civ. Proc. 23(b)(3)(D), for the proposal is that there be no trial. But other specifications of the Rulethose designed to protect absentees by blocking unwarranted or overbroad class definitions-demand undiluted, even heightened, attention in the settlement context. Such attention is of vital importance, for a court asked to certify a settlement class will lack the opportunity, present when a case is litigated, to adjust the class, informed by the proceedings as they unfold. See Rule 23(c), (d).16And, of overriding importance, courts must be mindful that the Rule as now composed sets the requirements they are bound to enforce. Federal Rules take effect after an extensive deliberative process involving many reviewers: a Rules Advisory Committee, public commenters, the Judicial Conference, this Court, the Congress. See 28 U. S. C. §§ 2073, 2074. The text of a rule thus proposed and reviewed limits judicial inventiveness. Courts are not free to amend a rule outside the process Congress ordered, a process properly tuned to the instruction that rules of procedure "shall not abridge ... any substantive right." § 2072(b).Rule 23(e), on settlement of class actions, reads in its entirety: "A class action shall not be dismissed or compromised16 Portions of the opinion dissenting in part appear to assume that settlement counts only one way-in favor of certification. See post, at 629, 630, 641. But see post, at 635. To the extent that is the dissent's meaning, we disagree. Settlement, though a relevant factor, does not inevitably signal that class-action certification should be granted more readily than it would be were the case to be litigated. For reasons the Third Circuit aired, see 83 F.3d 610, 626-635 (1996), proposed settlement classes sometimes warrant more, not less, caution on the question of certification.621without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs." This prescription was designed to function as an additional requirement, not a superseding direction, for the "class action" to which Rule 23(e) refers is one qualified for certification under Rule 23(a) and (b). Cf. Eisen, 417 U. S., at 176-177 (adequate representation does not eliminate additional requirement to provide notice). Subdivisions (a) and (b) focus court attention on whether a proposed class has sufficient unity so that absent members can fairly be bound by decisions of class representatives. That dominant concern persists when settlement, rather than trial, is proposed.The safeguards provided by the Rule 23(a) and (b) classqualifying criteria, we emphasize, are not impractical impediments-checks shorn of utility-in the settlement-class context. First, the standards set for the protection of absent class members serve to inhibit appraisals of the chancellor's foot kind-class certifications dependent upon the court's gestalt judgment or overarching impression of the settlement's fairness.Second, if a fairness inquiry under Rule 23(e) controlled certification, eclipsing Rule 23(a) and (b), and permitting class designation despite the impossibility of litigation, both class counsel and court would be disarmed. Class counsel confined to settlement negotiations could not use the threat of litigation to press for a better offer, see Coffee, Class Wars: The Dilemma of the Mass Tort Class Action, 95 Colum. L. Rev. 1343, 1379-1380 (1995), and the court would face a bargain proffered for its approval without benefit of adversarial investigation, see, e. g., Kamilewicz v. Bank of Boston Corp., 100 F.3d 1348, 1352 (CA7 1996) (Easterbrook, J., dissenting from denial of rehearing en bane) (parties "may even put one over on the court, in a staged performance"), cert. denied, 520 U. S. 1204 (1997).622Federal courts, in any case, lack authority to substitute for Rule 23's certification criteria a standard never adoptedthat if a settlement is "fair," then certification is proper. Applying to this case criteria the rulemakers set, we conclude that the Third Circuit's appraisal is essentially correct. Although that court should have acknowledged that settlement is a factor in the calculus, a remand is not warranted on that account. The Court of Appeals' opinion amply demonstrates why-with or without a settlement on the tablethe sprawling class the District Court certified does not satisfy Rule 23's requirementsPAWe address first the requirement of Rule 23(b)(3) that "[common] questions of law or fact ... predominate over any questions affecting only individual members." The District Court concluded that predominance was satisfied based on two factors: class members' shared experience of asbestos exposure and their common "interest in receiving prompt and fair compensation for their claims, while minimizing the risks and transaction costs inherent in the asbestos litigation process as it occurs presently in the tort system." 157 F. R. D., at 316. The settling parties also contend that the settlement's fairness is a common question, predominating over disparate legal issues that might be pivotal in litigation but become irrelevant under the settlement.The predominance requirement stated in Rule 23(b)(3), we hold, is not met by the factors on which the District Court relied. The benefits asbestos-exposed persons might gain from the establishment of a grand-scale compensation scheme is a matter fit for legislative consideration, see supra,17We do not inspect and set aside for insufficient evidence District Court findings of fact. Cf. post, at 633, 637-638. Rather, we focus on the requirements of Rule 23, and endeavor to explain why those requirements cannot be met for a class so enormously diverse and problematic as the one the District Court certified.623at 598, but it is not pertinent to the predominance inquiry. That inquiry trains on the legal or factual questions that qualify each class member's case as a genuine controversy, questions that preexist any settlement.18The Rule 23(b)(3) predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation. See 7 A Wright, Miller, & Kane 518519.19 The inquiry appropriate under Rule 23(e), on the other hand, protects unnamed class members "from unjust or unfair settlements affecting their rights when the representatives become fainthearted before the action is adjudicated or are able to secure satisfaction of their individual claims by a compromise." See 7B Wright, Miller, & Kane § 1797, at 340-341. But it is not the mission of Rule 23(e) to assure the class cohesion that legitimizes representative action in the first place. If a common interest in a fair compromise could satisfy the predominance requirement of Rule 23(b)(3), that vital prescription would be stripped of any meaning in the settlement context.The District Court also relied upon this commonality: "The members of the class have all been exposed to asbestos products supplied by the defendants .... " 157 F. R. D., at 316. Even if Rule 23(a)'s commonality requirement may be satis-18 In this respect, the predominance requirement of Rule 23(b)(3) is similar to the requirement of Rule 23(a)(3) that "claims or defenses" of the named representatives must be "typical of the claims or defenses of the class." The words "claims or defenses" in this context-just as in the context of Rule 24(b)(2) governing permissive intervention-"manifestly refer to the kinds of claims or defenses that can be raised in courts of law as part of an actual or impending law suit." Diamond v. Charles, 476 U. S. 54, 76-77 (1986) (O'CONNOR, J., concurring in part and concurring in judgment).19 This case, we note, involves no "limited fund" capable of supporting class treatment under Rule 23(b)(I)(B), which does not have a predominance requirement. See Georgine v. Amchem Products, Inc., 157 F. R. D. 246, 318 (ED Pa. 1994); see also id., at 291, and n. 40. The settling parties sought to proceed exclusively under Rule 23(b)(3).624fied by that shared experience, the predominance criterion is far more demanding. See 83 F. 3d, at 626-627. Given the greater number of questions peculiar to the several categories of class members, and to individuals within each category, and the significance of those uncommon questions, any overarching dispute about the health consequences of asbestos exposure cannot satisfy the Rule 23(b)(3) predominance standard.The Third Circuit highlighted the disparate questions un-dermining class cohesion in this case:"Class members were exposed to different asbestoscontaining products, for different amounts of time, in different ways, and over different periods. Some class members suffer no physical injury or have only asymptomatic pleural changes, while others suffer from lung cancer, disabling asbestosis, or from mesothelioma .... Each has a different history of cigarette smoking, a factor that complicates the causation inquiry."The [exposure-only] plaintiffs especially share little in common, either with each other or with the presently injured class members. It is unclear whether they will contract asbestos-related disease and, if so, what disease each will suffer. They will also incur different medical expenses because their monitoring and treatment will depend on singular circumstances and individual medical histories." Id., at 626.Differences in state law, the Court of Appeals observed, compound these disparities. See id., at 627 (citing Phillips Petroleum Co. v. Shutts, 472 U. S. 797, 823 (1985)).No settlement class called to our attention is as sprawling as this one. Cf. In re Asbestos Litigation, 90 F. 3d, at 976, n. 8 ("We would likely agree with the Third Circuit that a class action requesting individual damages for members of a global class of asbestos claimants would not satisfy [Rule 23] requirements due to the huge number of individuals and625their varying medical expenses, smoking histories, and family situations."). Predominance is a test readily met in certain cases alleging consumer or securities fraud or violations of the antitrust laws. See Adv. Comm. Notes, 28 U. S. C. App., p. 697; see also supra, at 615, 616. Even mass tort cases arising from a common cause or disaster may, depending upon the circumstances, satisfy the predominance requirement. The Advisory Committee for the 1966 revision of Rule 23, it is true, noted that "mass accident" cases are likely to present "significant questions, not only of damages but of liability and defenses of liability, ... affecting the individuals in different ways." Adv. Comm. Notes, 28 U. S. C. App., p. 697. And the Committee advised that such cases are "ordinarily not appropriate" for class treatment. Ibid. But the text of the Rule does not categorically exclude mass tort cases from class certification, and District Courts, since the late 1970's, have been certifying such cases in increasing number. See Resnik, From "Cases" to "Litigation," 54 Law & Contemp. Prob. 5, 17-19 (Summer 1991) (describing trend). The Committee's warning, however, continues to call for caution when individual stakes are high and disparities among class members great. As the Third Circuit's opinion makes plain, the certification in this case does not follow the counsel of caution. That certification cannot be upheld, for it rests on a conception of Rule 23(b)(3)'s predominance requirement irreconcilable with the Rule's design.BNor can the class approved by the District Court satisfy Rule 23(a)(4)'s requirement that the named parties "will fairly and adequately protect the interests of the class." The adequacy inquiry under Rule 23(a)(4) serves to uncover conflicts of interest between named parties and the class they seek to represent. See General Telephone Co. of Southwest v. Falcon, 457 U. S. 147, 157-158, n. 13 (1982). "[A] class representative must be part of the class and 'pos-626sess the same interest and suffer the same injury' as the class members." East Tex. Motor Freight System, Inc. v. Rodriguez, 431 U. S. 395, 403 (1977) (quoting Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. 208, 216 (1974)).20As the Third Circuit pointed out, named parties with diverse medical conditions sought to act on behalf of a single giant class rather than on behalf of discrete subclasses. In significant respects, the interests of those within the single class are not aligned. Most saliently, for the currently injured, the critical goal is generous immediate payments. That goal tugs against the interest of exposure-only plaintiffs in ensuring an ample, inflation-protected fund for the future. Cf. General Telephone Co. of Northwest v. EEOC, 446 U. S. 318, 331 (1980) ("In employment discrimination litigation, conflicts might arise, for example, between employees and applicants who were denied employment and who will, if granted relief, compete with employees for fringe benefits or seniority. Under Rule 23, the same plaintiff could not represent these classes.").The disparity between the currently injured and exposure-only categories of plaintiffs, and the diversity within each category are not made insignificant by the District Court's finding that petitioners' assets suffice to pay claims under the settlement. See 157 F. R. D., at 291. AI-2°The adequacy-of-representation requirement "tend[s] to merge" with the commonality and typicality criteria of Rule 23(a), which "serve as guideposts for determining whether ... maintenance of a class action is economical and whether the named plaintiff's claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence." General Telephone Co. of Southwest v. Falcon, 457 U. S. 147, 157, n. 13 (1982). The adequacy heading also factors in competency and conflicts of class counsel. See id., at 157158, n. 13. Like the Third Circuit, we decline to address adequacy-ofcounsel issues discretely in light of our conclusions that common questions of law or fact do not predominate and that the named plaintiffs cannot adequately represent the interests of this enormous class.627though this is not a "limited fund" case certified under Rule 23(b)(1)(B), the terms of the settlement reflect essential allocation decisions designed to confine compensation and to limit defendants' liability. For example, as earlier described, see supra, at 604-605, the settlement includes no adjustment for inflation; only a few claimants per year can opt out at the back end; and loss-of-consortium claims are extinguished with no compensation.The settling parties, in sum, achieved a global compromise with no structural assurance of fair and adequate representation for the diverse groups and individuals affected. Although the named parties alleged a range of complaints, each served generally as representative for the whole, not for a separate constituency. In another asbestos class action, the Second Circuit spoke precisely to this point:"[W]here differences among members of a class are such that subclasses must be established, we know of no authority that permits a court to approve a settlement without creating subclasses on the basis of consents by members of a unitary class, some of whom happen to be members of the distinct subgroups. The class representatives may well have thought that the Settlement serves the aggregate interests of the entire class. But the adversity among subgroups requires that the members of each subgroup cannot be bound to a settlement except by consents given by those who understand that their role is to represent solely the members of their respective subgroups." In re Joint Eastern and Southern Dist. Asbestos Litigation, 982 F.2d 721, 742-743 (1992), modified on reh'g sub nom. In re Findley, 993 F. 2d 7 (1993).The Third Circuit found no assurance here-either in the terms of the settlement or in the structure of the negotiations-that the named plaintiffs operated under a proper understanding of their representational responsibilities. See62883 F. 3d, at 630-631. That assessment, we conclude, is on the mark.CImpediments to the provision of adequate notice, the Third Circuit emphasized, rendered highly problematic any endeavor to tie to a settlement class persons with no perceptible asbestos-related disease at the time of the settlement. Id., at 633; cf. In re Asbestos Litigation, 90 F. 3d, at 999-1000 (Smith, J., dissenting). Many persons in the exposure-only category, the Court of Appeals stressed, may not even know of their exposure, or realize the extent of the harm they may incur. Even if they fully appreciate the significance of class notice, those without current afflictions may not have the information or foresight needed to decide, intelligently, whether to stay in or opt out.Family members of asbestos-exposed individuals may themselves fall prey to disease or may ultimately have ripe claims for loss of consortium. Yet large numbers of people in this category-future spouses and children of asbestos victims-could not be alerted to their class membership. And current spouses and children of the occupationally exposed may know nothing of that exposure.Because we have concluded that the class in this case cannot satisfy the requirements of common issue predominance and adequacy of representation, we need not rule, definitively, on the notice given here. In accord with the Third Circuit, however, see 83 F. 3d, at 633-634, we recognize the gravity of the question whether class action notice sufficient under the Constitution and Rule 23 could ever be given to legions so unselfconscious and amorphous.vThe argument is sensibly made that a nationwide administrative claims processing regime would provide the most secure, fair, and efficient means of compensating victims of as-629bestos exposure.21 Congress, however, has not adopted such a solution. And Rule 23, which must be interpreted with fidelity to the Rules Enabling Act and applied with the interests of absent class members in close view, cannot carry the large load CCR, class counsel, and the District Court heaped upon it. As this case exemplifies, the rule makers' prescriptions for class actions may be endangered by "those who embrace [Rule 23] too enthusiastically just as [they are by] those who approach [the Rule] with distaste." C. Wright, Law of Federal Courts 508 (5th ed. 1994); cf. 83 F. 3d, at 634 (suggesting resort to less bold aggregation techniques, including more narrowly defined class certifications).***For the reasons stated, the judgment of the Court of Appeals for the Third Circuit isAffirmed

OCTOBER TERM, 1996SyllabusAMCHEM PRODUCTS, INC., ET AL. v. WINDSOR ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUITNo. 96-270. Argued February 18, 1997-Decided June 25, 1997This case concerns the legitimacy under Rule 23 of the Federal Rules of Civil Procedure of a class-action certification sought to achieve global settlement of current and future asbestos-related claims. Never intending to litigate, the settling parties-petitioners and the representatives of the plaintiff class described below-presented to the District Court a class-action complaint, an answer, a proposed settlement agreement, and a joint motion for conditional class certification. The complaint identifies nine lead plaintiffs, designating them and members of their families as representatives of a class comprised of all persons who had not previously sued any of the asbestos-manufacturing companies that are petitioners in this suit, but who (1) had been exposed-occupationally or through the occupational exposure of a spouse or household member-to asbestos attributable to a petitioner, or (2) whose spouse or family member had been so exposed. Potentially hundreds of thousands, perhaps millions, of individuals may fit this description. All named plaintiffs alleged exposure; more than half of them alleged already manifested physical injuries; the others, so-called "exposure-only" claimants, alleged that they had not yet manifested any asbestos-related condition. The complaint delineated no subclasses; all named plaintiffs were designated as representatives of the entire class.The exhaustive agreement, inter alia, (1) proposed to settle, and to preclude nearly all class members from litigating, claims not previously filed against petitioners; (2) detailed an administrative mechanism and a schedule of payments to compensate class members who meet defined exposure and medical criteria; (3) described four categories of compensable cancers and nonmalignant conditions, and specified the range of damages to be paid qualifying claimants for each; (4) did not adjust payments for inflation; (5) capped the number of claims payable annually for each disease; and (6) denied compensation for family members' loss-ofconsortium claims, for exposure-only plaintiffs' claims for emotional distress, enhanced risk of disease, and medical monitoring, and for "pleural" claims involving lung plaques but no physical impairment, even if otherwise applicable state law recognized such claims.592SyllabusThe District Court approved the settling parties' plan for giving notice to the class and certified the proposed class for settlement only. The court found, over numerous challenges raised by the objectors, that the settlement was fair, the court's jurisdiction properly invoked, and representation and notice adequate. Pending the issuance of a final order, the District Court enjoined class members from separately pursuing asbestos suits in any federal or state court. The Third Circuit ultimately vacated the District Court's orders. Although the objectors maintained that the case was not justiciable and that the exposure-only claimants lacked standing to sue, the Court of Appeals declined to reach these issues, reasoning that they would not exist but for the class certification. The court acknowledged that a class action may be certified for settlement only, but held that the certification requirements of Rule 23 must be met as if the case were going to be litigated, without taking the settlement into account. The court nevertheless homed in on the settlement's terms in examining aspects of the case under Rule 23 criteria. The Court of Appeals explained that certification was inappropriate because the class failed to satisfy, among other provisions, Rule 23(b)(3)'s requirement that questions common to the class "predominate over" other questions, and Rule 23(a)(4)'s adequacy of representation requirement. The court therefore ordered the class decertified.Held:1. The class certification issues are dispositive here in that their resolution is logically antecedent to the existence of any Article III issues. This Court therefore declines to resolve objectors' assertions that no justiciable case or controversy is presented and that the exposure-only claimants lack standing to sue. Cf. Arizonans for Official English v. Arizona, 520 U. S. 43, 66-67. The Court follows this path mindful that Rule 23's requirements must be interpreted in keeping with Article III constraints, and with the Rules Enabling Act's instruction that procedural rules not abridge, enlarge, or modify any substantive right. Pp. 612-613.2. The sprawling class the District Court certified does not satisfy Rule 23's requirements. Pp. 613-629.(a) Rule 23 gained its current shape in a 1966 revision. Its subdivisions (a) and (b) enumerate criteria that must be met for a class to be certified. Rule 23(b)(3) was the most adventuresome innovation of the 1966 Amendments, permitting judgments for money that would bind all class members save those who opt out. To gain certification under Rule 23(b)(3), a class must satisfy the requirements of Rule 23(a), among them, that named class representatives will fairly and adequately protect class interests; the class must also meet the Rule 23(b)(3) criteria593Full Text of Opinion

1997_97-6270

complex, but the phrase as quoted presents the issue for our decision.The parties, reflecting a similar division among various Courts of Appeals, disagree over the interpretation of the unless clause in the following circumstance. What if the State restoring the offender's rights forbids possession of some firearms, say pistols, but not others, say rifles? In one sense, he "may not ... possess ... firearms" under the unless clause because the ban on specified weapons is a ban on "firearms." In another sense, he can possess firearms under the unless clause because the state ban is not absolute. Compare, e. g., United States v. Estrella, 104 F.3d 3, 8 (CA1) (adopting former reading), cert. denied, 521 U. S. 1110 (1997), and United States v. Driscoll, 970 F.2d 1472, 14801481 (CA6 1992) (same), cert. denied, 506 U. S. 1083 (1993), with United States v. Qualls, 140 F.3d 824, 826 (CA9 1998) (en banc) (intermediate position), and United States v. Shoemaker, 2 F.3d 53, 55-56 (CA4 1993) (same), cert. denied, 510 U. S. 1047 (1994).The Government contends the class of criminals who "may not ... possess ... firearms" includes those forbidden to have some guns but not others. On this reading, the restoration of rights is of no effect here, the previous offenses are chargeable, and petitioner's sentence must be enhanced. On appeal, the Government's position prevailed in the Court of Appeals for the First Circuit, and we now affirm its judgment.IPetitioner Gerald Caron has an extensive criminal record, including felonies. In Massachusetts state court, he was convicted in 1958 of attempted breaking and entering at night and, in 1959 and 1963, of breaking and entering at night. In California state court, he was convicted in 1970 of assault with intent to commit murder and attempted murder.In July 1993, petitioner walked into the home of Walter Miller, carrying a semiautomatic rifle. He threatened Miller,311brandished the rifle in his face, and pointed it at his wife, his daughters, and his 3-year-old grandson. Police officers disarmed and arrested petitioner.In September 1993, a federal agent called on petitioner at home to determine if he had other unlawful firearms. Petitioner said he had only flintlock or other antique weapons (not forbidden by law) and owned no conventional firearms. Federal law, the agent told him, forbade his possession of firearms and was not superseded by state law. In December 1993, agents executed a search warrant at petitioner's house, seizing six rifles and shotguns and 6,823 rounds of ammunition.A federal jury convicted petitioner of four counts of possessing a firearm or ammunition after having been convicted of a serious offense. See 18 U. S. C. § 922(g)(1). The District Court enhanced his sentence because he was at least a three-time violent felon, based on his one California and three Massachusetts convictions. See § 924(e). Petitioner claimed the court should not have counted his Massachusetts convictions because his civil rights had been restored by operation of Massachusetts law. Massachusetts law allowed petitioner to possess rifles or shotguns, as he had the necessary firearm permit and his felony convictions were more than five years old. Mass. Gen. Laws §§ 140:123, 140:129B, 140:129C (1996). The law forbade him to possess handguns outside his home or business. See §§ 140:121, 140:131, 269:10.At first, the District Court rejected the claim that Massachusetts had restored petitioner's civil rights. It held civil rights had to be restored by an offender-specific action rather than by operation of law. The First Circuit disagreed, vacating the sentence and remanding the case. United States v. Caron, 77 F.3d 1, 2, 6 (1996) (en banc). We denied certiorari. 518 U. S. 1027 (1996). On remand, the District Court, interpreting the unless clause of the federal statute, disregarded the Massachusetts convictions.312It ruled Massachusetts law did not forbid petitioner's possession of firearms because he could possess rifles. 941 F. Supp. 238, 251-254 (Mass. 1996). Though Massachusetts restricted petitioner's right to carry a handgun, the District Court considered the restriction irrelevant because his case involved rifles and shotguns. See ibid. The First Circuit reversed, counting the convictions because petitioner remained subject to significant firearms restrictions. We granted certiorari. 522 U. S. 1038 (1998).IIA federal statute forbids possession of firearms by those convicted of serious offenses. An abbreviated version of the statute is as follows:"I t shall be unlawful for any person-"(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;"to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce." 18 U. S. C. § 922(g).Three-time violent felons who violate § 922(g) face enhanced sentences of at least 15 years' imprisonment. § 924(e)(1). "Violent felony" is defined to include burglary and other crimes creating a serious risk of physical injury. § 924(e)(2)(B)(ii). This term includes petitioner's previous offenses discussed above.Not all violent felony convictions, however, count for purposes of § 922(g) or § 924(e). Until 1986, federal law alone determined whether a state conviction counted, regardless of whether the State had expunged the conviction.313Dickerson v. New Banner Institute, Inc., 460 U. S. 103, 119122 (1983). Congress modified this aspect of Dickerson by adopting the following language:"What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms." § 921(a)(20).The first sentence and the first clause of the second sentence define convictions, pardons, expungements, and restorations of civil rights by reference to the law of the convicting jurisdiction. See Beecham v. United States, 511 U. S. 368, 371 (1994).Aside from the unless clause, the parties agree Massachusetts law has restored petitioner's civil rights. As for the unless clause, state law permits him to possess rifles and shotguns but forbids him to possess handguns outside his home or business. The question presented is whether the handgun restriction activates the unless clause, making the convictions count under federal law.We note these preliminary points. First, Massachusetts restored petitioner's civil rights by operation of law rather than by pardon or the like. This fact makes no difference. Nothing in the text of § 921(a)(20) requires a case-by-case decision to restore civil rights to this particular offender. While the term "pardon" connotes a case-by-case determination, "restoration of civil rights" does not. Massachusetts has chosen a broad rule to govern this situation, and federal law gives effect to its rule. All Courts of Appeals to ad-314dress the point agree. See Caron, 77 F. 3d, at 2; McGrath v. United States, 60 F.3d 1005, 1008 (CA2 1995), cert. denied, 516 U. S. 1121 (1996); United States v. Hall, 20 F.3d 1066, 1068-1069 (CAlO 1994); United States v. Glaser, 14 F.3d 1213, 1218 (CA7 1994); United States v. Thomas, 991 F.2d 206, 212-213 (CA5), cert. denied, 510 U. S. 1014 (1993); United States v. Dahms, 938 F.2d 131, 133-134 (CA9 1991); United States v. Essick, 935 F.2d 28, 30-31 (CA4 1991); United States v. Cassidy, 899 F.2d 543, 550, and n. 14 (CA6 1990).Second, the District Court ruled, and petitioner urges here, that the unless clause allows an offender to possess what state law permits him to possess, and nothing more. Here, petitioner's shotguns and rifles were permitted by state law, so, under their theory, the weapons would not be covered by the unless clause. While we do not dispute the common sense of this approach, the words of the statute do not permit it. The unless clause is activated if a restoration of civil rights "expressly provides that the person may not ... possess ... firearms." 18 U. S. C. § 921(a)(20). Either the restorations forbade possession of "firearms" and the convictions count for all purposes, or they did not and the convictions count not at all. The unless clause looks to the terms of the past restorations alone and does not refer to the weapons at issue in the present case. So if the Massachusetts convictions count for some purposes, they count for all and bar possession of all guns.IIIThe phrase "may not ... possess ... firearms," then, must be interpreted under either of what the parties call the two "all-or-nothing" approaches. Either it applies when the State forbids one or more types of firearms, as the Government contends; or it does not apply if state law permits one or more types of firearms, regardless of the one possessed in the particular case.315Under the Government's approach, a state weapons limitation on an offender activates the uniform federal ban on possessing any firearms at all. This is so even if the guns the offender possessed were ones the State permitted him to have. The State has singled out the offender as more dangerous than law-abiding citizens, and federal law uses this determination to impose its own broader stricture.Although either reading creates incongruities, petitioner's approach yields results contrary to a likely, and rational, congressional policy. If permission to possess one firearm entailed permission to possess all, then state permission to have a pistol would allow possession of an assault weapon as well. Under this view, if petitioner, in violation of state law, had possessed a handgun, the unless clause would still not apply because he could have possessed a rifle. Not only would this strange result be inconsistent with any conceivable federal policy, but it also would arise often enough to impair the working of the federal statute. Massachusetts, in this case, and some 15 other States choose to restore civil rights while restricting firearm rights in part. The permissive reading would make these partial restrictions a nullity under federal law, indeed in the egregious cases with the most dangerous weapons. Congress cannot have intended this bizarre result.Under petitioner's all-or-nothing argument, federal law would forbid only a subset of activities already criminal under state law. This limitation would contradict the intent of Congress. In Congress' view, existing state laws "provide less than positive assurance that the person in question no longer poses an unacceptable risk of dangerousness." Dickerson, 460 U. S., at 120. Congress meant to keep guns away from all offenders who, the Federal Government feared, might cause harm, even if those persons were not deemed dangerous by States. See id., at 119. If federal law is to provide the missing "positive assurance," it must reach primary conduct not covered by state law. The need316for this caution is borne out by petitioner's rifle attack on the Miller family, in which petitioner used a gun permitted by state law. Any other result would reduce federal law to a sentence enhancement for some state-law violations, a result inconsistent with the congressional intent we recognized in Dickerson. Permission to possess one gun cannot mean permission to possess all.Congress responded to our ruling in Dickerson by providing that the law of the State of conviction, not federal law, determines the restoration of civil rights as a rule. While state law is the source of law for restorations of other civil rights, however, it does not follow that state law also controls the unless clause. Under the Government's approach, with which we agree, the federal policy still governs the interpretation of the unless clause. We see nothing contradictory in this analysis. Restoration of the right to vote, the right to hold office, and the right to sit on a jury turns on so many complexities and nuances that state law is the most convenient source for definition. As to the possession of weapons, however, the Federal Government has an interest in a single, national, protective policy, broader than required by state law. Petitioner's approach would undermine this protective purpose.As a final matter, petitioner says his reading is required by the rule of lenity, but his argument is unavailing. The rule of lenity is not invoked by a grammatical possibility. It does not apply if the ambiguous reading relied on is an implausible reading of the congressional purpose. See United States v. Shabani, 513 U. S. 10, 17 (1994) (requiring use of traditional tools of statutory construction to resolve ambiguities before resorting to the rule of lenity). For the reasons we have explained, petitioner's reading is not plausible enough to satisfy this condition.In sum, Massachusetts treats petitioner as too dangerous to trust with handguns, though it accords this right to317law-abiding citizens. Federal law uses this state finding of dangerousness in forbidding petitioner to have any guns. The judgment of the Court of Appeals isAffirmed

OCTOBER TERM, 1997SyllabusCARON v. UNITED STATESCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUITNo. 97-6270. Argued April 21, 1998-Decided June 22,1998Federal law forbids a person convicted of a serious offense to possess any firearm, 18 U. S. C. § 922(g)(I), and requires that a three-time violent felon who violates § 922(g) receive an enhanced sentence, § 924(e). However, a previous conviction is not a predicate for the substantive offense or the enhanced sentence if the offender's civil rights have been restored, "unless such ... restoration ... expressly provides that the person may not ... possess ... firearms." § 921(a)(20). Petitioner, who has an extensive criminal record, was convicted of possessing, inter alia, six rifles and shotguns in violation of § 922(g). The District Court enhanced his sentence based on one California conviction and three Massachusetts convictions, but the First Circuit vacated the sentence, concluding that his civil rights had been restored by operation of a Massachusetts law that permitted him to possess rifles but restricted his right to carry handguns. On remand, the District Court disregarded the Massachusetts convictions, finding that, because Massachusetts law allowed petitioner to possess rifles, § 921 (a)(20)'s "unless clause" was not activated, and that the handgun restriction was irrelevant because the case involved rifles and shotguns. The First Circuit reversed, counting the convictions because petitioner remained subject to significant firearms restrictions.Held: The handgun restriction activates the unless clause, making the Massachusetts convictions count under federal law. The phrase "may not ... possess ... firearms" must be interpreted under either of two "all-or-nothing" approaches: either it applies when the State forbids one or more types of firearms, as the Government contends; or it does not apply if the State permits one or more types of firearms, regardless of the one possessed in the particular case. This Court agrees with the Government's approach, under which a state weapons limitation activates the uniform federal ban on possessing any firearms at all. Even if a State permitted an offender to have the guns he possessed, federal law uses the State's determination that the offender is more dangerous than law-abiding citizens to impose its own broader stricture. Under petitioner's approach, if he had possessed a handgun in violation of state law, the unless clause would not apply because he could have possessed a rifle. This approach contradicts a likely, and rational,309congressional intent. Congress, believing that existing state laws provided less than positive assurance that a repeat violent offender no longer poses an unacceptable risk of dangerousness, intended to keep guns away from all offenders who might cause harm, even if they were not deemed dangerous by the States. Dickerson v. New Banner Institute, Inc., 460 U. S. 103, 119, 120. To provide the missing assurance, federal law must reach primary conduct not covered by state law. The fact that state law determines the restoration of civil rights does not mean that state law also controls the unless clause: As to weapons possession, the Federal Government has an interest in a single, national, protective policy, broader than required by state law. The rule of lenity does not apply here, since petitioner relies on an implausible reading of the congressional purpose. See United States v. Shabani, 513 U. S. 10,17. Pp.312-317.Affirmed.KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and STEVENS, O'CONNOR, GINSBURG, and BREYER, JJ., joined. THOMAS, J., filed a dissenting opinion, in which SCALIA and SOUTER, JJ., joined, post, p. 317.Owen S. Walker argued the cause for petitioner. With him on the briefs was Bjorn R. Lange.Jonathan E. Nuechterlein argued the cause for the United States. On the brief were Solicitor General Waxman, Acting Assistant Attorney General Keeney, Deputy Solicitor General Dreeben, Edward C. DuMont, and Nina Goodman.JUSTICE KENNEDY delivered the opinion of the Court. Under federal law, a person convicted of a crime punishable by more than one year in prison may not possess any firearm. 18 U. S. C. § 922(g)(1). If he has three violent felony convictions and violates the statute, he must receive an enhanced sentence. § 924(e). A previous conviction is a predicate for neither the substantive offense nor the sentence enhancement if the offender has had his civil rights restored, "unless such ... restoration of civil rights expressly provides that the person may not ... possess ... firearms." § 921(a)(20). This is the so-called "unless clause" we now must interpret. As the ellipses suggest, the statute is more310Full Text of Opinion

2001_01-687

General Olson, Assistant Attorney General Chertoff, Barbara McDowell, and Nina Goodman.Timothy J. Sullivan argued the cause for respondents.With him on the brief were Arthur S. Cheslock, James E. McCollum, Jr., Carter G. Phillips, Jeffrey T. Green, Paul J. Zidlicky, and Stanley H. Needleman. *CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.In Apprendi v. New Jersey, 530 U. S. 466 (2000), we held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id., at 490. In federal prosecutions, such facts must also be charged in the indictment. Id., at 476 (quoting Jones v. United States, 526 U. S. 227, 243, n. 6 (1999)). In this case, we address whether the omission from a federal indictment of a fact that enhances the statutory maximum sentence justifies a court of appeals' vacating the enhanced sentence, even though the defendant did not object in the trial court.Respondent Stanley Hall, Jr., led a "vast drug organization" in Baltimore. 261 F.3d 397, 401 (CA4 2001). The six other respondents helped run the operation. In October 1997, a federal grand jury returned an indictment charging respondents with conspiring to distribute and to possess with intent to distribute 5 kilograms or more of cocaine and 50 grams or more of cocaine base, in violation of 21 U. S. C. §§ 846 and 841(a)(1). A superseding indictment returned in March 1998, which extended the time period of the conspiracy and added five more defendants, charged a conspiracy to*Clayton A. Sweeney, Jr., Mary Price, Peter Goldberger, David Porter, Joshua L. Dratel, and Lisa Bondareff Kemler filed a brief for the National Association of Criminal Defense Lawyers et al. as amici curiae urging affirmance.628distribute and to possess with intent to distribute a "detectable amount" of cocaine and cocaine base. The superseding indictment did not allege any of the threshold levels of drug quantity that lead to enhanced penalties under § 841(b).In accord with the superseding indictment, the District Court instructed the jury that "as long as you find that a defendant conspired to distribute or posses[s] with intent to distribute these controlled substances, the amounts involved are not important." App. to Pet. for Cert. 6a (emphasis deleted). The jury found respondents guilty.Congress established "a term of imprisonment of not more than 20 years" for drug offenses involving a detectable quantity of cocaine or cocaine base. § 841(b)(1)(C). But the District Court did not sentence respondents under this provision. Consistent with the practice in federal courts at the time, at sentencing the District Court made a finding of drug quantity that implicated the enhanced penalties of § 841(b)(1)(A), which prescribes "a term of imprisonment which may not be ... more than life" for drug offenses involving at least 50 grams of cocaine base. The District Court found, based on the trial testimony, respondent Hall responsible for at least 500 grams of cocaine base, and the other respondents responsible for at least 1.5 kilograms of cocaine base. The court sentenced respondents Hall and Powell to 30 years' imprisonment and the other respondents to life imprisonment. Respondents did not object in the District Court to the fact that these sentences were based on an amount of drug quantity not alleged in the indictment.While respondents' appeal was pending in the United States Court of Appeals for the Fourth Circuit, we decided Apprendi v. New Jersey, supra. Respondents then argued in the Court of Appeals that their sentences were invalid under Apprendi, because the issue of drug quantity was neither alleged in the indictment nor submitted to the petit629jury. The Court of Appeals noted that respondents "failed to raise this argument before the district court" and thus reviewed the argument for plain error. 261 F. 3d, at 403 (citing Fed. Rule Crim. Proc. 52(b)). A divided court nonetheless vacated respondents' sentences on the ground that "because an indictment setting forth all the essential elements of an offense is both mandatory and jurisdictional, ... a court is without jurisdiction to ... impose a sentence for an offense not charged in the indictment." 261 F. 3d, at 404405 (internal quotation marks omitted). Such an error, the Court of Appeals concluded, "seriously affects the fairness, integrity or public reputation of judicial proceedings." Id., at 406. We granted certiorari, 534 U. S. 1074 (2002), and now reverse.We first address the Court of Appeals' conclusion that the omission from the indictment was a "jurisdictional" defect and thus required vacating respondents' sentences. Ex parte Bain, 121 U. S. 1 (1887), is the progenitor of this view. In Bain, the indictment charged that Bain, the cashier and director of a bank, made false statements "with intent to deceive the Comptroller of the Currency and the agent appointed to examine the affairs" of the bank. Id., at 4. Before trial, the court struck the words "the Comptroller of the Currency and," on the ground that they were superfluous. The jury found Bain guilty. Id., at 4-5. Bain challenged the amendment to the indictment in a petition for a writ of habeas corpus. The Court concluded that the amendment was improper and that therefore "the jurisdiction of the offence [was] gone, and the court [had] no right to proceed any further in the progress of the case for want of an indictment." Id., at 13.Bain, however, is a product of an era in which this Court's authority to review criminal convictions was greatly circumscribed. At the time it was decided, a defendant could not obtain direct review of his criminal conviction in the Su-630preme Court.1 See generally United States v. Sanges, 144 U. S. 310, 319-322 (1892); L. Orfield, Criminal Appeals in America 244-246 (1939). The Court's authority to issue a writ of habeas corpus was limited to cases in which the convicting "court had no jurisdiction to render the judgment which it gave." Bain, supra, at 3; see also Preiser v. Rodriguez, 411 U. S. 475, 485 (1973). In 1887, therefore, this Court could examine constitutional errors in a criminal trial only on a writ of habeas corpus, and only then if it deemed the error "jurisdictional." The Court's desire to correct obvious constitutional violations led to a "somewhat expansive notion of 'jurisdiction,'" Custis v. United States, 511 U. S. 485, 494 (1994), which was "more a fiction than anything else," Wainwright v. Sykes, 433 U. S. 72, 79 (1977).Bain's elastic concept of jurisdiction is not what the term "jurisdiction" means today, i. e., "the courts' statutory or constitutional power to adjudicate the case." Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 89 (1998). This latter concept of subject-matter jurisdiction, because it involves a court's power to hear a case, can never be forfeited or waived. Consequently, defects in subject-matter jurisdiction require correction regardless of whether the error was raised in district court. See, e. g., Louisville & Nashville R. Co. v. Mottley, 211 U. S. 149 (1908). In contrast, the grand jury right can be waived. See Fed. Rule Crim. Proc. 7(b); Smith v. United States, 360 U. S. 1, 6 (1959).Post-Bain cases confirm that defects in an indictment do not deprive a court of its power to adjudicate a case. In Lamar v. United States, 240 U. S. 60 (1916), the Court rejected the claim that "the court had no jurisdiction because the indictment does not charge a crime against the United States." Id., at 64. Justice Holmes explained that a dis-1 In 1889, Congress authorized direct review of capital cases in the Supreme Court. See 25 Stat. 655. In 1891, this right was extended to defendants in all cases involving "infamous crime[s]." 26 Stat. 827; see In re Claasen, 140 U. S. 200 (1891).631trict court "has jurisdiction of all crimes cognizable under the authority of the United States ... [and] [t]he objection that the indictment does not charge a crime against the United States goes only to the merits of the case." Id., at 65. Similarly, United States v. Williams, 341 U. S. 58, 66 (1951), held that a ruling "that the indictment is defective does not affect the jurisdiction of the trial court to determine the case presented by the indictment."Thus, this Court some time ago departed from Bain's view that indictment defects are "jurisdictional." Bain has been cited in later cases such as Stirone v. United States, 361 U. S. 212 (1960), and Russell v. United States, 369 U. S. 749 (1962), for the proposition that "an indictment may not be amended except by resubmission to the grand jury, unless the change is merely a matter of form," id., at 770 (citing Bain, supra). But in each of these cases proper objection had been made in the District Court to the sufficiency of the indictment. We need not retreat from this settled proposition of law decided in Bain to say that the analysis of that issue in terms of "jurisdiction" was mistaken in the light of later cases such as Lamar and Williams. Insofar as it held that a defective indictment deprives a court of jurisdiction, Bain is overruled.Freed from the view that indictment omissions deprive a court of jurisdiction, we proceed to apply the plain-error test of Federal Rule of Criminal Procedure 52(b) to respondents' forfeited claim. See United States v. Olano, 507 U. S. 725, 731 (1993). "Under that test, before an appellate court can correct an error not raised at trial, there must be (1) 'error,' (2) that is 'plain,' and (3) that 'affect[s] substantial rights.''' Johnson v. United States, 520 U. S. 461, 466-467 (1997) (quoting Olano, supra, at 732). "If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error "seriously affect[s] the fairness, integrity, or public reputation of judicial pro-632ceedings." 520 U. S., at 467 (internal quotation marks omitted) (quoting Olano, supra, at 732).The Government concedes that the indictment's failure to allege a fact, drug quantity, that increased the statutory maximum sentence rendered respondents' enhanced sentences erroneous under the reasoning of Apprendi and Jones. The Government also concedes that such error was plain. See Johnson, supra, at 468 ("[W]here the law at the time of trial was settled and clearly contrary to the law at the time of appeal[,] it is enough that an error be 'plain' at the time of appellate consideration").The third inquiry is whether the plain error "affect[ed] substantial rights." This usually means that the error "must have affected the outcome of the district court proceedings." Olano, supra, at 734. Respondents argue that an indictment error falls within the "limited class" of "structural errors," Johnson, supra, at 468-469, that "can be corrected regardless of their effect on the outcome," Olano, supra, at 735. Respondents cite Silber v. United States, 370 U. S. 717 (1962) (per curiam), and Stirone v. United States, supra, in support of this position.2 The Government counters by noting that Johnson's list of structural errors did not include Stirone or Silber, see 520 U. S., at 468-469, and that the defendants in both of these cases preserved their claims at trial.As in Johnson (see id., at 469), we need not resolve whether respondents satisfy this element of the plain-error inquiry, because even assuming respondents' substantial rights were affected, the error did not seriously affect the2 Respondents also argue that even if the indictment defect is not structural error, it did affect their substantial rights because they were sentenced to more than the 20-year maximum that § 841(b) authorizes without regard to drug quantity. The Government responds that the defendants had notice that their sentences could exceed 20 years, and that the grand jury would have found that the conspiracy involved at least 50 grams of cocaine base had the Government sought such an allegation.633fairness, integrity, or public reputation of judicial proceedings. The error in Johnson was the District Court's failure to submit an element of the false statement offense, materiality, to the petit jury. The evidence of materiality, however, was "overwhelming" and "essentially uncontroverted." Id., at 470. We thus held that there was "no basis for concluding that the error 'seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.'" Ibid.The same analysis applies in this case to the omission of drug quantity from the indictment. The evidence that the conspiracy involved at least 50 grams of cocaine base was "overwhelming" and "essentially uncontroverted." 3 Much of the evidence implicating respondents in the drug conspiracy revealed the conspiracy's involvement with far more than 50 grams of cocaine base. Baltimore police officers made numerous state arrests and seizures between February 1996 and April 1997 that resulted in the seizure of 795 ziplock bags and clear bags containing approximately 380 grams of cocaine base. 20 Record 179-244. A federal search of respondent Jovan Powell's residence resulted in the seizure of 51.3 grams of cocaine base. 32 id., at 18-30. A cooperating co-conspirator testified at trial that he witnessed respondent Hall cook one-quarter of a kilogram of cocaine powder into cocaine base. 22 id., at 208. Another cooperating co-conspirator testified at trial that she was present in a hotel room where the drug operation bagged one kilogram of cocaine base into ziplock bags. 27 id., at 107-108. Surely the grand jury, having found that the conspiracy existed, would have also found that the conspiracy involved at least 50 grams of cocaine base.3 Respondents challenged the presentence reports' assignment of a base offense level of 38, which is applicable to 1.5 kilograms or more of cocaine base. But they never argued that the conspiracy involved less than 50 grams of cocaine base, which is the relevant quantity for purposes of Apprendi, as that is the threshold quantity for the penalty of life imprisonment in 21 U. S. C. § 841(b)(1)(A).634Respondents emphasize that the Fifth Amendment grand jury right serves a vital function in providing for a body of citizens that acts as a check on prosecutorial power. No doubt that is true. See, e. g., 3 Story, Commentaries on the Constitution § 1779 (1883), reprinted in 5 The Founders' Constitution 295 (P. Kurland & R. Lerner eds. 1987). But that is surely no less true of the Sixth Amendment right to a petit jury, which, unlike the grand jury, must find guilt beyond a reasonable doubt. The important role of the petit jury did not, however, prevent us in Johnson from applying the longstanding rule "that a constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right .... " Yakus v. United States, 321 U. S. 414, 444 (1944).In providing for graduated penalties in 21 U. S. C. § 841(b), Congress intended that defendants, like respondents, involved in large-scale drug operations receive more severe punishment than those committing drug offenses involving lesser quantities. Indeed, the fairness and integrity of the criminal justice system depends on meting out to those inflicting the greatest harm on society the most severe punishments. The real threat then to the "fairness, integrity, and public reputation of judicial proceedings" would be if respondents, despite the overwhelming and uncontroverted evidence that they were involved in a vast drug conspiracy, were to receive a sentence prescribed for those committing less substantial drug offenses because of an error that was never objected to at trial. Cf. Johnson, supra, at 470 (quoting R. Traynor, The Riddle of Harmless Error 50 (1970)).Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 2001SyllabusUNITED STATES v. COTTON ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUITNo. 01-687. Argued April 15, 2002-Decided May 20, 2002A federal grand jury returned an indictment charging respondents with conspiracy to distribute and to possess with intent to distribute a "detectable amount" of cocaine and cocaine base. Respondents were convicted and received a sentence based on the District Court's finding of drug quantity-at least 50 grams of cocaine base-that implicated the enhanced penalties of 21 U. S. C. § 841(b). They did not object in the District Court to the fact that the sentences were based on a quantity not alleged in the indictment. While their appeal was pending, this Court decided, in Apprendi v. New Jersey, 530 U. S. 466, 490, that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." In federal prosecutions, such facts must also be charged in the indictment. Id., at 476. Respondents then argued in the Fourth Circuit that their sentences were invalid under Apprendi, because the drug quantity issue was neither alleged in the indictment nor submitted to the petit jury. That court vacated the sentences on the ground that it had no jurisdiction to impose a sentence for an offense not charged in the indictment.Held:1. A defective indictment does not deprive a court of jurisdiction.Ex parte Bain, 121 U. S. 1, the progenitor of the Fourth Circuit's view that the indictment errors are "jurisdictional," is a product of an era in which this Court's authority to review criminal convictions was greatly circumscribed. It could examine constitutional errors in a criminal trial only on a writ of habeas corpus, and only then if it deemed the error "jurisdictional." The Court's desire to correct obvious constitutional violations led to a "somewhat expansive notion of 'jurisdiction,'" Custis v. United States, 511 U. S. 485, 494, which is not what the term means today, i. e., "the courts' statutory or constitutional power to adjudicate the case," Steel Co. v. Citizens for Better Environment, 523 U. S. 83,89. Because subject-matter jurisdiction involves a court's power to hear a case, it can never be forfeited or waived. Thus, defects require correction regardless of whether the error was raised in district court. But a grand jury right can be waived. Post-Bain cases confirm that626Syllabusindictment defects do not deprive a court of its power to adjudicate a case. See, e. g., Lamar v. United States, 240 U. S. 60. Thus, this Court some time ago departed from Bain's view that indictment defects are "jurisdictional." Stirone v. United States, 361 U. S. 212; Russell v. United States, 369 U. S. 749, distinguished. Insofar as it held that a defective indictment deprives a court of jurisdiction, Bain is overruled. Pp. 629-631.2. The omission from a federal indictment of a fact that enhances the statutory maximum sentence does not justify a court of appeals' vacating the enhanced sentence, even though the defendant did not object in the trial court. Under Federal Rule of Criminal Procedure 52(b)'s plain-error test, where there is an "(1) error, (2) that is plain, and (3) that affects substantial rights," an appellate court may correct an error not raised at trial, "but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings." Johnson v. United States, 520 U. S. 461, 466-467 (internal quotation marks omitted). The Government concedes that the indictment's failure to allege a fact that increased the sentences was plain error. But, even assuming the error affected respondents' substantial rights, it did not seriously affect the fairness, integrity, or public reputation of judicial proceedings. The evidence that the conspiracy involved at least 50 grams of cocaine base was "overwhelming" and "essentially uncontroverted." It is true that the Fifth Amendment grand jury right serves a vital function in providing for a body of citizens that acts as a check on prosecutorial power, but that is no less true of the Sixth Amendment right to a petit jury, which must find guilt beyond a reasonable doubt. The petit jury's important role did not, however, prevent the Johnson Court from applying the longstanding rule "that a constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right." Yakus v. United States, 321 U. S. 414, 444. The real threat to the "fairness, integrity, or public reputation of judicial proceedings" would be if respondents, despite the overwhelming and uncontroverted evidence that they were involved in a vast drug conspiracy, were to receive a sentence prescribed for those committing less substantial drug offenses because of an error that was never objected to at trial. Pp. 631-634.261 F.3d 397, reversed and remanded.REHNQUIST, C. J., delivered the opinion for a unanimous Court.Deputy Solicitor General Dreeben argued the cause for the United States. With him on the briefs were Solicitor627Full Text of Opinion

1959_111

MR. JUSTICE CLARK delivered the opinion of the Court.Involved here are questions concerning joinder of defendants under Rule 8(b) of the Federal Rules of Criminal Procedure [Footnote 1] and whether shipments of stolen goods in interstate commerce may be aggregated as to value in order to meet the statutory minimum of $5,000, under 18 U.S.C. § 2314. [Footnote 2] Page 362 U. S. 513The indictment charged transportation in interstate commerce of goods known to have been stolen and having a value in excess of $5,000. In contained three substantive counts. Count 1 charged the two Schaffers (petitioners in No. 111) and the three Stracuzzas (defendants below, who either pleaded guilty or had the charges against them nolle prossed at trial) with transporting stolen ladies' and children's wearing apparel from New York to Pennsylvania. Count 2 charged petitioner Marco and the Stracuzzas with a similar movement of stolen goods from New York to West Virginia. Count 3 charged petitioner Karp and the Stracuzzas with like shipments from New York to Massachusetts. The fourth and final count of the indictment charged all of these parties with a conspiracy to commit the substantive offenses charged in the first three counts. The petitioners here were tried on the indictment simultaneously in a single trial. On motion of petitioners for acquittal at the close of the Government's case, the court dismissed the conspiracy count for failure of proof. This motion was denied, however, as to the substantive counts, the court finding that no prejudice would result from the joint trial. Upon submission of the substantive counts to the jury on a detailed charge, each petitioner was found guilty, and thereafter fined and sentenced to prison. The Court of Appeals affirmed the convictions, likewise finding that no prejudice existed by reason of the joint trial. 266 F.2d 435. We granted certiorari. 361 U.S. 809.The allegations of the indictment having met the explicit provisions of Rule 8(b) as to joinder of defendants, we cannot find clearly erroneous the findings of the trial court and the Court of Appeals that no prejudice resulted from the joint trial. As to the requirements of Page 362 U. S. 514 value, we hold that the shipments to a single defendant may be aggregated. The judgments are therefore affirmed.We first consider the question of joinder of defendants under Rule 8(b) of the Federal Rules of Criminal Procedure. It is clear that the initial joinder of the petitioners was permissible under that Rule, which allows the joinder of defendants"in the same indictment . . . if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses."It cannot be denied that the petitioners were so charged in the indictment. The problem remaining is whether, after dismissal of the conspiracy count before submission of the cases to the jury, a severance should have been ordered under Rule 14 [Footnote 3] of the Federal Rules of Criminal Procedure. This Rule requires a separate trial if"it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together. . . ."Under the circumstances here, we think there was no such prejudice.It is admitted that the three Stracuzzas were the common center of the scheme to transport the stolen goods. The four petitioners here participated in some steps of the transactions in the stolen goods, although each was involved with separate interstate shipments. The separate substantive charges of the indictment employed almost identical language and alleged violations of the same criminal statute during the same period and in the same manner. This made proof of the over-all operation Page 362 U. S. 515 of the scheme competent as to all counts. The variations in the proof related to the specific shipments proven against each petitioner. This proof was related to each petitioner separately, and proven as to each by different witnesses. It included entirely separate invoices and other exhibits, all of which were first clearly identified as applying only to a specific petitioner and were so received and shown to the jury under painstaking instructions to that effect. In short, the proof was carefully compartmentalized as to each petitioner. The propriety of the joinder prior to the failure of proof of conspiracy was not assailed. [Footnote 4] When the Government rested, however, the petitioners filed their motion for dismissal, and it was sustained as to the conspiracy count. The petitioners then pressed for acquittal on the remaining counts, and the court decided that the evidence was sufficient on the substantive counts. The case was submitted to the jury on each of these counts, and, under a charge which was characterized by petitioners' counsel as being "extremely fair." This charge meticulously set out separately the evidence as to each of the petitioners and admonished the jury that they were "not to take into consideration any proof against one defendant and apply it by inference or otherwise to any other defendant."Petitioners contend that prejudice would nevertheless be implicit in a continuation of the joint trial after dismissal of the conspiracy count. They say that the resulting prejudice could not be cured by any cautionary instructions, and that therefore the trial judge was left with no discretion. Petitioners overlook, however, that the joinder was authorized under Rule 8(b), and that subsequent severance was controlled by Rule 14, which provides for separate trials where "it appears that a Page 362 U. S. 516 defendant . . . is prejudiced . . . by such joinder for trial. . . ." It appears that not only was no prejudice shown, but both the trial court and the Court of Appeals affirmatively found that none was present. We cannot say to the contrary on this record. Nor can we fashion a hard and fast formula that, when a conspiracy count fails, joinder is error as a matter of law. We do emphasize, however, that, in such a situation, the trial judge has a continuing duty at all stages of the trial to grant a severance if prejudice does appear. And where, as here, the charge which originally justified joinder turns out to lack the support of sufficient evidence, a trial judge should be particularly sensitive to the possibility of such prejudice. However, the petitioners here not only failed to show any prejudice that would call Rule 14 into operation, but even failed to request a new trial. Instead, they relied entirely on their motions for acquittal. Moreover, the judge was acutely aware of the possibility of prejudice, and was strict in his charge -- not only as to the testimony the jury was not to consider, but also as to that evidence which was available in the consideration of the guilt of each petitioner separately under the respective substantive counts. The terms of Rule 8(b) having been met and no prejudice under Rule 14 having been shown, there was no misjoinder.This case is not like United States v. Dietrich, [Footnote 5] where a single count indictment against two defendants charged only a single conspiracy offense, or McElroy v. United States, [Footnote 6] where no count linked all the defendants and all the offenses. Neither is Kotteakos v. United States, [Footnote 7] on which the petitioners place their chief reliance, apposite. That case turned on the harmless error rule, and its application Page 362 U. S. 517 to a serious variance between the indictment and the proof. There, the Court found "it highly probable that the error had substantial and injurious effect." 328 U.S. at 328 U. S. 776. The dissent agreed that the test of injury resulting from joinder "depends on the special circumstances of each case," id., at 328 U. S. 777; but it reasoned that the possibility was "nonexistent" that evidence relating to one defendant would be used to convict another, and declared that the "dangers which petitioners conjure up are abstract ones." Id. at 328 U. S. 778. The harmless error rule, which was the central issue in Kotteakos, is not even reached in the instant case, since here, the joinder was proper under Rule 8(b), and no error was shown.Petitioners also contend that, since the individual shipments with which they were connected amounted to less than $5,000 each, the requirements of the statute as to value were not present. However, it appeared at the trial that the total merchandise shipped to each petitioner during the period charged in the several counts was over $5,000, even though each individual shipment was less. The trial court permitted the aggregation of the value of these shipments to meet the statutory limit, [Footnote 8] and it is this that is claimed to be error. A sensible reading of the statute properly attributes to Congress the view that, where the shipments have enough relationship so that they may properly be charged as a single offense, their value may be aggregated. The Act defines "value" in terms of that aggregate. [Footnote 9] The legislative history makes clear that the value may be computed on a "series of transactions." [Footnote 10] It seems plain that the Stracuzzas and each of the petitioners were engaged in a series of transactions, Page 362 U. S. 518 and therefore there is no error on that phase of the case. [Footnote 11]Petitioners in No. 122 further contend that certain of the prosecutor's remarks in his summation to the jury were improper and prejudicial. We agree with the treatment of this issue by the Court of Appeals, and see no need for further elaboration.The judgments are thereforeAffirmed

U.S. Supreme CourtSchaffer v. United States, 362 U.S. 511 (1960)Schaffer v. United StatesNo. 111Argued March 24, 1960Decided May 16, 1960*362 U.S. 511SyllabusUnder 18 U.S.C. § 2314, three persons named Stracuzza, who admittedly were the common center of a scheme to transport stolen goods, were indicted in a single indictment with the four petitioners for transporting in interstate commerce goods known to have been stolen and having a value in excess of $5,000. Count 1 charged two of the petitioners and the Stracuzzas with transporting stolen goods from New York to Pennsylvania; Count 2 charged another petitioner and the Stracuzzas with transporting stolen goods from New York to West Virginia; Count 3 charged another petitioner and the Stracuzzas with transporting stolen goods from New York to Massachusetts; and Count 4 charged all the defendants with a conspiracy to commit the substantive offenses. On motion of petitioners for acquittal at the close of the Government's case, the court dismissed the conspiracy count for failure of proof; but it found that no prejudice would result from a joint trial, and submitted the substantive counts to the jury under careful detailed instructions. Petitioners were convicted, and the Court of Appeals affirmed, finding that no prejudice resulted from the joint trial.Held: the judgments are affirmed. Pp. 362 U. S. 512-518.(a) The joinder of all the defendants in the original indictment was proper under Rule 8(b) of the Federal Rules of Criminal Procedure; even after dismissal of the conspiracy count, severance was not required under Rule 14 unless the joinder prejudiced the defendants; and, on the record, this Court cannot say that both the trial court and the Court of Appeals erred in finding that petitioners were not prejudiced by a joint trial. Pp. 362 U. S. 514-517.(b) Though each individual shipment amounted to less than $5,000, the trial court did not err in permitting the series of related shipments to each petitioner to be aggregated in order to meet the statutory minimum of $5,000, since 18 U.S.C. § 2311 provides Page 362 U. S. 512 that "the aggregate value of all goods . . . referred to in a single indictment shall constitute the value thereof." Pp. 362 U. S. 517-518.(c) The prosecutor's remarks in his summation to the jury were not prejudicial. P. 362 U. S. 518.266 F.2d 435, affirmed.

1990_89-1717

JUSTICE O'CONNOR delivered the opinion of the Court.We have held that the Fourth Amendment permits police officers to approach individuals at random in airport lobbies and other public places to ask them questions and to request consent to search their luggage, so long as a reasonable person would understand that he or she could refuse to cooperate. This case requires us to determine whether the same rule applies to police encounters that take place on a bus.IDrug interdiction efforts have led to the use of police surveillance at airports, train stations, and bus depots. Law enforcement officers stationed at such locations routinely approach individuals, either randomly or because they suspect in some vague way that the individuals may be engaged in criminal activity, and ask them potentially incriminating questions. Broward County has adopted such a program. County Sheriff's Department officers routinely board buses at scheduled stops and ask passengers for permission to search their luggage.In this case, two officers discovered cocaine when they searched a suitcase belonging to Terrance Bostick. The underlying facts of the search are in dispute, but the Florida Supreme Court, whose decision we review here, stated explicitly the factual premise for its decision:"'Two officers, complete with badges, insignia and one of them holding a recognizable zipper pouch, containing a pistol, boarded a bus bound from Miami to Atlanta during a stopover in Fort Lauderdale. Eyeing the passengers, the officers admittedly without articulable suspicion, picked out the defendant passenger and asked to inspect his ticket and identification. The ticket, from Miami to Atlanta, matched the defendant's identification and both were immediately returned to him as unremarkable. However, the two police officers persisted, and explained their presence as narcotics agents on the Page 501 U. S. 432 lookout for illegal drugs. In pursuit of that aim, they then requested the defendant's consent to search his luggage. Needless to say, there is a conflict in the evidence about whether the defendant consented to the search of the second bag in which the contraband was found and as to whether he was informed of his right to refuse consent. However, any conflict must be resolved in favor of the state, it being a question of fact decided by the trial judge.'"554 So. 2d 1153, 1154-1155 (1989), quoting 510 So. 2d 321, 322 (Fla. App.1987) (Letts, J., dissenting in part).Two facts are particularly worth noting. First, the police specifically advised Bostick that he had the right to refuse consent. Bostick appears to have disputed the point, but, as the Florida Supreme Court noted explicitly, the trial court resolved this evidentiary conflict in the State's favor. Second, at no time did the officers threaten Bostick with a gun. The Florida Supreme Court indicated that one officer carried a zipper pouch containing a pistol -- the equivalent of carrying a gun in a holster -- but the court did not suggest that the gun was ever removed from its pouch, pointed at Bostick, or otherwise used in a threatening manner. The dissent's characterization of the officers as "gun-wielding inquisitor[s]," post at 501 U. S. 448, is colorful, but lacks any basis in fact.Bostick was arrested and charged with trafficking in cocaine. He moved to suppress the cocaine on the grounds that it had been seized in violation of his Fourth Amendment rights. The trial court denied the motion, but made no factual findings. Bostick subsequently entered a plea of guilty, but reserved the right to appeal the denial of the motion to suppress.The Florida District Court of Appeal affirmed, but considered the issue sufficiently important that it certified a question to the Florida Supreme Court. 510 So. 2d at 322. Page 501 U. S. 433 The Supreme Court reasoned that Bostick had been seized because a reasonable passenger in his situation would not have felt free to leave the bus to avoid questioning by the police. 554 So. 2d at 1154. It rephrased and answered the certified question so as to make the bus setting dispositive in every case. It ruled categorically that"''an impermissible seizure result[s] when police mount a drug search on buses during scheduled stops and question boarded passengers without articulable reasons for doing so, thereby obtaining consent to search the passengers' luggage.'"Ibid. The Florida Supreme Court thus adopted a per se rule that the Broward County Sheriff's practice of "working the buses" is unconstitutional. * The result of this decision is that police in Florida, as elsewhere, may approach persons at random in most public places, ask them questions and seek consent to a search, see id. at 1156; but they may not engage in the same behavior on a bus. Id. at 1157. We granted certiorari, 498 U.S. 894 (1990), to determine whether the Florida Supreme Court's per se rule is consistent with our Fourth Amendment jurisprudence.IIThe sole issue presented for our review is whether a police encounter on a bus of the type described above necessarily constitutes a "seizure" within the meaning of the Fourth Amendment. The State concedes, and we accept for purposes of this decision, that the officers lacked the reasonable Page 501 U. S. 434 suspicion required to justify a seizure and that, if a seizure took place, the drugs found in Bostick's suitcase must be suppressed as tainted fruit.Our cases make it clear that a seizure does not occur simply because a police officer approaches an individual and asks a few questions. So long as a reasonable person would feel free "to disregard the police and go about his business," California v. Hodari D., 499 U. S. 621, 501 U. S. 628 (1991), the encounter is consensual, and no reasonable suspicion is required. The encounter will not trigger Fourth Amendment scrutiny unless it loses its consensual nature. The Court made precisely this point in Terry v. Ohio, 392 U. S. 1, 392 U. S. 19, n. 16 (1968):"Obviously, not all personal intercourse between policemen and citizens involves 'seizures' of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred."Since Terry, we have held repeatedly that mere police questioning does not constitute a seizure. In Florida v. Royer, 460 U. S. 491 (1983) (plurality opinion), for example, we explained that"law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions."Id. at 460 U. S. 497; see id. at 460 U. S. 523, n. 3 (REHNQUIST, J., dissenting).There is no doubt that, if this same encounter had taken place before Bostick boarded the bus or in the lobby of the bus terminal, it would not rise to the level of a seizure. The Court has dealt with similar encounters in airports, and has found them to be "the sort of consensual encounter[s] that implicat[e] no Fourth Amendment interest." Florida v. Rodriguez, 469 U. S. 1, 469 U. S. 5-6 (1984). We have stated that even Page 501 U. S. 435 when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual, see INS v. Delgado, 466 U. S. 210, 466 U. S. 216 (1984); Rodriguez, supra, 469 U.S. at 469 U. S. 5-6; ask to examine the individual's identification, see Delgado, supra, 466 U.S. at 466 U. S. 216; Royer, supra, 460 U.S. at 460 U. S. 501 (plurality opinion); United States v. Mendenhall, 446 U. S. 544, 446 U. S. 557-558 (1980); and request consent to search his or her luggage, see Royer, supra, 460 U.S. at 460 U. S. 501 (plurality opinion) -- as long as the police do not convey a message that compliance with their requests is required.Bostick insists that this case is different because it took place in the cramped confines of a bus. A police encounter is much more intimidating in this setting, he argues, because police tower over a seated passenger and there is little room to move around. Bostick claims to find support in language from Michigan v. Chesternut, 486 U. S. 567, 486 U. S. 573 (1988), and other cases, indicating that a seizure occurs when a reasonable person would believe that he or she is not "free to leave." Bostick maintains that a reasonable bus passenger would not have felt free to leave under the circumstances of this case because there is nowhere to go on a bus. Also, the bus was about to depart. Had Bostick disembarked, he would have risked being stranded and losing whatever baggage he had locked away in the luggage compartment.The Florida Supreme Court found this argument persuasive, so much so that it adopted a per se rule prohibiting the police from randomly boarding buses as a means of drug interdiction. The state court erred, however, in focusing on whether Bostick was "free to leave," rather than on the principle that those words were intended to capture. When police attempt to question a person who is walking down the street or through an airport lobby, it makes sense to inquire whether a reasonable person would feel free to continue walking. But when the person is seated on a bus and has no desire to leave, the degree to which a reasonable person Page 501 U. S. 436 would feel that he or she could leave is not an accurate measure of the coercive effect of the encounter.Here, for example, the mere fact that Bostick did not feel free to leave the bus does not mean that the police seized him. Bostick was a passenger on a bus that was scheduled to depart. He would not have felt free to leave the bus even if the police had not been present. Bostick's movements were "confined" in a sense, but this was the natural result of his decision to take the bus; it says nothing about whether or not the police conduct at issue was coercive.In this respect, the Court's decision in INS v. Delgado, supra, is dispositive. At issue there was the INS' practice of visiting factories at random and questioning employees to determine whether any were illegal aliens. Several INS agents would stand near the building's exits, while other agents walked through the factory questioning workers. The Court acknowledged that the workers may not have been free to leave their worksite, but explained that this was not the result of police activity:"Ordinarily, when people are at work, their freedom to move about has been meaningfully restricted, not by the actions of law enforcement officials, but by the workers' voluntary obligations to their employers."Id. 466 U.S. at 466 U. S. 218. We concluded that there was no seizure because, even though the workers were not free to leave the building without being questioned, the agents' conduct should have given employees"no reason to believe that they would be detained if they gave truthful answers to the questions put to them or if they simply refused to answer."Ibid.The present case is analytically indistinguishable from Delgado. Like the workers in that case, Bostick's freedom of movement was restricted by a factor independent of police conduct -- i.e., by his being a passenger on a bus. Accordingly, the "free to leave" analysis on which Bostick relies is inapplicable. In such a situation, the appropriate inquiry is whether a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter. This Page 501 U. S. 437 formulation follows logically from prior cases and breaks no new ground. We have said before that the crucial test is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would "have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business." Chesternut, supra, 486 U.S. at 486 U. S. 569. See also Hodari D., supra, 499 U.S. at 499 U. S. 628. Where the encounter takes place is one factor, but it is not the only one. And, as the Solicitor General correctly observes, an individual may decline an officer's request without fearing prosecution. See Brief for the United States as Amicus Curiae 25. We have consistently held that a refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure. See Delgado, 466 U.S. at 466 U. S. 216-217; Royer, 460 U.S. at 460 U. S. 498 (plurality opinion); Brown v. Texas, 443 U. S. 47, 443 U. S. 52-53 (1979).The facts of this case, as described by the Florida Supreme Court, leave some doubt whether a seizure occurred. Two officers walked up to Bostick on the bus, asked him a few questions, and asked if they could search his bags. As we have explained, no seizure occurs when police ask questions of an individual, ask to examine the individual's identification, and request consent to search his or her luggage -- so long as the officers do not convey a message that compliance with their requests is required. Here, the facts recited by the Florida Supreme Court indicate that the officers did not point guns at Bostick or otherwise threaten him, and that they specifically advised Bostick that he could refuse consent.Nevertheless, we refrain from deciding whether or not a seizure occurred in this case. The trial court made no express findings of fact, and the Florida Supreme Court rested its decision on a single fact -- that the encounter took place on a bus -- rather than on the totality of the circumstances. We remand so that the Florida courts may evaluate the seizure question under the correct legal standard. We do reject, however, Bostick's argument that he must have been seized Page 501 U. S. 438 because no reasonable person would freely consent to a search of luggage that he or she knows contains drugs. This argument cannot prevail because the "reasonable person" test presupposes an innocent person. See Royer, supra, 460 U.S. at 460 U. S. 519, n. 4 (BLACKMUN, J., dissenting) ("The fact that [respondent] knew the search was likely to turn up contraband is, of course, irrelevant; the potential intrusiveness of the officers' conduct must be judged from the viewpoint of an innocent person in [his] position"). Accord, Chesternut, 486 U.S. at 486 U. S. 574 ("This reasonable person' standard . . . ensures that the scope of Fourth Amendment protection does not vary with the state of mind of the particular individual being approached").The dissent characterizes our decision as holding that police may board buses and, by an "intimidating show of authority," post at 501 U. S. 447 (emphasis added), demand of passengers their "voluntary" cooperation. That characterization is incorrect. Clearly, a bus passenger's decision to cooperate with law enforcement officers authorizes the police to conduct a search without first obtaining a warrant only if the cooperation is voluntary. "Consent" that is the product of official intimidation or harassment is not consent at all. Citizens do not forfeit their constitutional rights when they are coerced to comply with a request that they would prefer to refuse. The question to be decided by the Florida courts on remand is whether Bostick chose to permit the search of his luggage.The dissent also attempts to characterize our decision as applying a lesser degree of constitutional protection to those individuals who travel by bus, rather than by other forms of transportation. This, too, is an erroneous characterization. Our Fourth Amendment inquiry in this ease -- whether a reasonable person would have felt free to decline the officers' requests or otherwise terminate the encounter -- applies equally to police encounters that take place on trains, planes, and city streets. It is the dissent that would single out this particular Page 501 U. S. 439 mode of travel for differential treatment by adopting a per se rule that random bus searches are unconstitutional.The dissent reserves its strongest criticism for the proposition that police officers can approach individuals as to whom they have no reasonable suspicion and ask them potentially incriminating questions. But this proposition is by no means novel; it has been endorsed by the Court any number of times. Terry, Royer, Rodriguez, and Delgado are just a few examples. As we have explained, today's decision follows logically from those decisions, and breaks no new ground. Unless the dissent advocates overruling a long, unbroken line of decisions dating back more than 20 years, its criticism is not well taken.This Court, as the dissent correctly observes, is not empowered to suspend constitutional guarantees so that the Government may more effectively wage a "war on drugs." See post at 501 U. S. 440, 501 U. S. 450-451. If that war is to be fought, those who fight it must respect the rights of individuals, whether or not those individuals are suspected of having committed a crime. By the same token, this Court is not empowered to forbid law enforcement practices simply because it considers them distasteful. The Fourth Amendment proscribes unreasonable searches and seizures; it does not proscribe voluntary cooperation. The cramped confines of a bus are one relevant factor that should be considered in evaluating whether a passenger's consent is voluntary. We cannot agree, however, with the Florida Supreme Court that this single factor will be dispositive in every case.We adhere to the rule that, in order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter. That rule applies to encounters that take place on a city street or in an airport lobby, and it applies equally to Page 501 U. S. 440 encounters on a bus. The Florida Supreme Court erred in adopting a per se rule.The judgment of the Florida Supreme Court is reversed, and the case remanded for further proceedings not inconsistent with this opinion.It is so ordered

U.S. Supreme CourtFlorida v. Bostick, 501 U.S. 429 (1991)Florida v. BostickNo. 89-1717Argued Feb. 26, 1991Decided June 20, 1991501 U.S. 419SyllabusAs part of a drug interdiction effort, Broward County Sheriff's Department officers routinely board buses at scheduled stops and ask passengers for permission to search their luggage. Two officers boarded respondent Bostick's bus and, without articulable suspicion, questioned him and requested his consent to search his luggage for drugs, advising him of his right to refuse. He gave his permission, and the officers, after finding cocaine, arrested Bostick on drug trafficking charges. His motion to suppress the cocaine on the ground that it had been seized in violation of the Fourth Amendment was denied by the trial court. The Florida Court of Appeal affirmed, but certified a question to the State Supreme Court. That court, reasoning that a reasonable passenger would not have felt free to leave the bus to avoid questioning by the police, adopted a per se rule that the sheriff's practice of "working the buses" is unconstitutional.Held:1. The Florida Supreme Court erred in adopting a per se rule that every encounter on a bus is a seizure. The appropriate test is whether, taking into account all of the circumstances surrounding the encounter, a reasonable passenger would feel free to decline the officers' requests or otherwise terminate the encounter. Pp. 501 U. S. 433-437.(a) A consensual encounter does not trigger Fourth Amendment scrutiny. See Terry v. Ohio, 392 U. S. 1, 392 U. S. 19, n. 16. Even when officers have no basis for suspecting a particular individual, they may generally ask the individual questions, Florida v. Rodriguez, 469 U. S. 1, 469 U. S. 5-6, ask to examine identification, INS v. Delgdo, 466 U. S. 210, 466 U. S. 216, and request consent to search luggage, Florida v. Royer, 460 U. S. 491, 460 U. S. 501, provided they do not convey a message that compliance with their requests is required. Thus, there is no doubt that, if this same encounter had taken place before Bostick boarded the bus or in the bus terminal, it would not be a seizure. Pp. 501 U. S. 434-435.(b) That this encounter took place on a bus is but one relevant factor in determining whether or not it was of a coercive nature. The state court erred in focusing on the "free to leave" language of Michigan v. Chesternut, 486 U. S. 567, 486 U. S. 573, rather than on the principle that those words were intended to capture. This inquiry is not an accurate measure of an encounter's coercive effect when a person is seated on a bus about to depart, has no desire to leave, and would not feel free to leave Page 501 U. S. 430 even if there were no police present. The more appropriate inquiry is whether a reasonable passenger would feel free to decline the officers' request or otherwise terminate the encounter. Thus, this case is analytically indistinguishable from INS v. Delgado, supra. There, no seizure occurred when INS agents visited factories at random, stationing some agents at exits while others questioned workers, because, even though workers were not free to leave without being questioned, the agents' conduct gave them no reason to believe that they would be detained if they answered truthfully or refused to answer. Such a refusal, alone, does not furnish the minimal level of objective justification needed for detention or seizure. Id. at 466 U. S. 216-217. Pp. 501 U. S. 435-437.2. This case is remanded for the Florida courts to evaluate the seizure question under the correct legal standard. The trial court made no express findings of fact, and the State Supreme Court rested its decision on a single fact -- that the encounter took place on a bus -- rather than on the totality of the circumstances. Rejected, however, is Bostick's argument that he must have been seized because no reasonable person would freely consent to a search of luggage containing drugs, since the "reasonable person" test presumes an innocent person. Pp. 501 U. S. 437-440.554 So. 2d 1153 (Fla.1989), reversed and remanded.O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, SCALIA, KENNEDY, and SOUTER, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BLACKMUN and STEVENS, JJ., joined, post, p. 501 U. S. 440. Page 501 U. S. 431

1974_73-1908

MR. JUSTICE BRENNAN delivered the opinion of the Court.There are other questions, but the principal issue presented for decision is whether a private cause of action for damages against corporate directors is to be implied in favor of a corporate stockholder under 18 U.S.C. § 610, a criminal statute prohibiting corporations from making "a contribution or expenditure in connection with any election at which Presidential and Vice Presidential electors . . . are to be voted for." [Footnote 1] We conclude Page 422 U. S. 69 that implication of such a federal cause of action is not suggested by the legislative context of § 610 or required to accomplish Congress' purposes in enacting the statute. We therefore have no occasion to address Page 422 U. S. 70 the questions whether § 610, properly construed, proscribes the expenditures alleged in this case, or whether the statute is unconstitutional as violative of the First Amendment or of the equal protection component of the Due Process Clause of the Fifth Amendment.IIn August and September, 1972, an advertisement with the caption "I say let's keep the campaign honest. Mobilize truth squads'" appeared in various national publications, including Time, Newsweek, and U.S. News and World Report, and in 19 local newspapers in communities where Bethlehem Steel Corp. (Bethlehem), a Delaware corporation, has plants. Reprints of the advertisement, which consisted mainly of quotations from a speech by petitioner Stewart S. Cort, chairman of the board of directors of Bethlehem, were included with the September 11, 1972, quarterly dividend checks mailed to the stockholders of the corporation. The main text of the advertisement appealed to the electorate to "encourage responsible, honest, and truthful campaigning." It alleged that vigilance was needed because "careless rhetoric and accusations . . . are being thrown around these days -- their main target being the business community." In italics, under a picture of Mr. Cort, the advertisement quoted "the following statement made by a political candidate: `The time has come for a tax system that says to big business -- you must pay your fair share.'" It then printed Mr. Cort's rejoinder to this in his speech, including his opinion that to say "large corporations [are] not carrying their fair share of the tax burden" is "baloney." The advertisement concluded with an offer to send, on request, copies of Mr. Cort's entire speech [Footnote 2] and a folder "telling how to Page 422 U. S. 71 go about activating Truth Squads." [Footnote 3] These publications could be obtained free from the Public Affairs Department of Bethlehem. It is stipulated that the entire costs of the advertisements and various mailings were paid from Bethlehem's general corporate funds. App. A29-A30; 350 F. Supp. 227, 229 (ED Pa.1972).Respondent owns 50 shares of Bethlehem stock and was qualified to vote in the 1972 Presidential election. He filed this suit in the United States District Court for the Eastern District of Pennsylvania on September 28, 1972, on behalf of himself and, derivatively, on behalf of Bethlehem. The complaint specified two separate and distinct bases for jurisdiction and relief. Count I alleged jurisdiction under 28 U.S.C. § 1331 and sought to state a private claim for relief under 18 U.S.C. § 610, which, as mentioned, in terms provides only for a criminal penalty. Count II invoked pendent jurisdiction for a claim under Delaware law, alleging that the corporate campaign expenditures were "ultra vires, unlawful and [a] willful, wanton and gross breach of [defendants'] duty owed to [Bethlehem]." Immediate injunctive relief against further corporate expenditures in connection with the 1972 Presidential election or any Page 422 U. S. 72 future campaign was sought, as well as compensatory and punitive damages in favor of the corporation.The District Court denied a preliminary injunction on October 25, 1972. 350 F. Supp. 227. While the denial was supported on three grounds, [Footnote 4] it was upheld on appeal to the Court of Appeals for the Third Circuit only on the narrow ground that irreparable harm was not shown. 471 F.2d 811 (1973). [Footnote 5]After the affirmance on appeal, petitioners sought an order requiring respondent to post security for expenses as required by Pennsylvania law. The court declined to order such security with regard to the federal cause of action alleged in Count I, but did order respondent to post $35,000 before proceeding with the pendent claim under Count II. Rather than post security, respondent filed an amended complaint, which dropped Count II, the separate state cause of action, from the case. [Footnote 6] Page 422 U. S. 73The District Court then granted petitioners' motion for summary judgment without opinion. The Court of Appeals reversed, 496 F.2d 416 (1974). The Court of Page 422 U. S. 74 Appeals held that, since the amended complaint sought damages for the corporation for violation of § 610, the controversy was not moot, although the election which occasioned it was past. The Court of Appeals held further that"a private cause of action, whether brought by a citizen to secure injunctive relief or by a stockholder to secure injunctive or derivative damage relief, [is] proper to remedy violation of § 610."Id. at 424. We granted certiorari, 419 U.S. 992 (1974). We reverse.IIWe consider first the holding of the Court of Appeals that respondent has "a private cause of action . . . [as] a citizen [or as a stockholder] to secure injunctive relief." The 1972 Presidential election is history, and respondent as citizen or stockholder seeks injunctive relief only as to future elections. In that circumstance, a statute enacted after the decision of the Court of Appeals, the Federal Election Campaign Act Amendments of 1974, Pub.L. 93-443, 88 Stat. 1263 (Amendments) (amending the Federal Election Campaign Act of 1971, 86 Stat. 3), requires reversal of the holding of the Court of Appeals.In terms, § 610 is only a criminal statute, providing a fine or imprisonment for its violation. At the time this suit was filed, there was no statutory provision for civil enforcement of § 610, whether by private parties or by a Government agency. But the Amendments created a Federal Election Commission, 2 U.S.C. § 437c(a)(1) (1970 ed., Supp. IV); [Footnote 7] established an administrative Page 422 U. S. 75 procedure for processing complaints of alleged violations of § 610 after January 1, 1975, 2 U.S.C. § 437g (1970 ed., Supp. IV), and § 410, note following 2 U.S.C. § 431 (1970 ed., Supp. IV); and provided that "[a]ny person who believes a violation . . . [of § 610] has occurred may file a complaint with the Commission." 2 U.S.C. § 437g(a)(1)(A) (1970 ed., Supp. IV). The Commission must either investigate the complaint or refer the complaint to the Attorney General, 2 U.S.C. §§ 437g(a)(2)(A) and (b) (1970 ed., Supp. IV). [Footnote 8] If the Commission chooses to investigate the complaint, and after investigation determines that "any person has engaged or is about to engage in any acts or practices which constitute or will constitute a violation" of § 610, the Commission may request the Attorney General to "institute a civil action for relief, including a permanent or temporary injunction, restraining order, or any other appropriate order. . . ." 2 U.S.C. § 437g(a)(7) (1970 ed., Supp. IV). And 2 U.S.C. § 437c(b) (1970 ed., Supp. IV), expressly vests the Commission with "primary jurisdiction" over any claimed violation of § 610 within its Page 422 U. S. 76 purview. [Footnote 9] Consequently, a complainant seeking as citizen or stockholder to enjoin alleged violations of § 610 in future elections must henceforth pursue the statutory remedy of a complaint to the Commission, and invoke its authority to request the Attorney General to seek the injunctive relief. H.R.Conf.Rep. No. 93-1438, p. 94 (1974). Thus, the Amendments constitute an intervening law that relegates to the Commission's cognizance respondent's complaint as citizen or stockholder for injunctive relief against any alleged violations of § 610 in future elections. In that circumstance, the holding of the Court of Appeals must be reversed, for our duty is to decide this case according to the law existing at the time of our decision.The governing rule was announced by Mr. Chief Justice Marshall in United States v. Schooner Peggy, 1 Cranch 103, 5 U. S. 110 (1801):"It is in the general true that the province of an Page 422 U. S. 77 appellate court is only to enquire whether a judgment when rendered was erroneous or not. But if, subsequent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied. If the law be constitutional . . . , I know of no court which can contest its obligation. . . . In such a case, the court must decide according to existing laws, and if it be necessary to set aside a judgment, rightful when rendered but which cannot be affirmed but in violation of law, the judgment must be set aside."We most recently reaffirmed the principle of Schooner Peggy in Bradley v. Richmond School Board, 416 U. S. 696, 416 U. S. 711 (1974), where we said:"We anchor our holding in this case on the principle that a court is to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary."There is no "statutory direction or legislative history to the contrary" in or respecting the Amendments, nor is there any possible "manifest injustice" in requiring respondent to pursue with respect to alleged violations which have yet to occur the statutory remedy for injunctive relief created by the Amendments.IIIOur conclusion in 422 U. S. for respondent seeks damages only derivatively as stockholder. Therefore, we turn next to the holding of the Court of Appeals that "a private cause of action . . . by a stockholder to secure . . . derivative damage relief [is] proper to remedy violation of § 610." We hold that such relief Page 422 U. S. 78 is not available with regard to a 1972 violation under § 610 itself, but rather is available, if at all, under Delaware law governing corporations. [Footnote 10]In determining whether a private remedy is implicit in a statute not expressly providing one, several factors are relevant. First, is the plaintiff "one of the class for whose especial benefit the statute was enacted," Texas & Pacific R. Co. v. Rigsby, 241 U. S. 33, 241 U. S. 39 (1916) (emphasis supplied) -- that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? See, e.g., National Railroad Passenger Corp. v. National Assn. of Railroad Passengers, 414 U. S. 453, 414 U. S. 458, 414 U. S. 460 (1974) (Amtrak). Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? See, e.g., Amtrak, supra; Securities Investor Protection Corp. v. Barbour, 421 U. S. 412, 421 U. S. 423 (1975); Calhoon v. Harvey, 379 U. S. 134 (1964). And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law? See Wheelding v. Wheeler, 373 U. S. 647, 373 U. S. 652 (1963); cf. J. I. Case Co. v. Borak, 377 U. S. 426, 377 U. S. 434 (1964); Bivens v. Six Unknown Federal Narcotics Agents, 403 U. S. 388, 403 U. S. 394-395 (1971); id. at 403 U. S. 400 (Harlan, J., concurring in judgment).The dissenting judge in the Court of Appeals and petitioners here suggest that, where a statute provides a penal remedy alone, it cannot be regarded as creating a Page 422 U. S. 79 right in any particular class of people."Every criminal statute is designed to protect some individual, public, or social interest. . . . To find an implied civil cause of action for the plaintiff in this case is to find an implied civil right of action for every individual, social, or public interest which might be invaded by violation of any criminal statute. To do this is to conclude that Congress intended to enact a civil code companion to the criminal code."496 F.2d at 428-429 (Aldisert, J., dissenting). Cf. Nashville Milk Co. v. Carnation Co., 355 U. S. 373, 355 U. S. 377 (1958).Clearly, provision of a criminal penalty does not necessarily preclude implication of a private cause of action for damages. Wyandotte Transportation Co. v. United States, 389 U. S. 191, 389 U. S. 201-202 (1967); see also J. I. Case Co. v. Borak, supra; Texas & Pacific R. Co. v. Rigsby, supra. However, in Wyandotte, Borak, and Rigsby, there was at least a statutory basis for inferring that a civil cause of action of some sort lay in favor of someone. [Footnote 11] Here, there was nothing more than Page 422 U. S. 80 a bare criminal statute, with absolutely no indication that civil enforcement of any kind was available to anyone.We need not, however, go so far as to say that, in this circumstance, a bare criminal statute can never be deemed sufficiently protective of some special group so as to give rise to a private cause of action by a member of that group. For the intent to protect corporate shareholders particularly was, at best, a subsidiary purpose of § 610, and the other relevant factors all either are not helpful or militate against implying a private cause of action.First, § 610 is derived from the Act of January 26, 1907, [Footnote 12] which"seems to have been motivated by two considerations. First, the necessity for destroying the influence over elections which corporations exercised through financial contribution. Second, the feeling that corporate officials had no moral right to use corporate funds for contribution to political parties without the consent of the stockholders."United States v. CIO, 335 U. S. 106, 335 U. S. 113 (1948). See 40 Cong.Rec. 96 (1905) Page 422 U. S. 81 (Annual Message of President Theodore Roosevelt). Respondent bases his derivative action on the second purpose, claiming that the intent to protect stockholders from use of their invested funds for political purposes demonstrates that the statute set up a federal right in shareholders not to have corporate funds used for this purpose.However, the legislative history of the 1907 Act, recited at length in United States v. Auto Workers, 352 U. S. 567 (1957), demonstrates that the protection of ordinary stockholders was, at best, a secondary concern. [Footnote 13] Rather, the primary purpose of the 1907 Act, and of the 1925 Federal Corrupt Practices Act, 43 Stat. 1070, which Page 422 U. S. 82 reenacted the 1907 provision with some changes as § 313 of that Act, see United States v. Auto Workers, supra at 352 U. S. 577, was to assure that federal elections are "free from the power of money,'" 352 U.S. at 352 U. S. 574, to eliminate "`the apparent hold on political parties which business interests . . . seek and sometimes obtain by reason of liberal campaign contributions.'" Id. at 352 U. S. 576, quoting 65 Cong.Rec. 9507 (1924) (remarks of Sen. Robinson). See also 352 U.S. at 352 U. S. 571-577. Thus, the legislation was primarily concerned with corporations as a source of aggregated wealth, and therefore of possible corrupting influence, and not directly with the internal relations between the corporations and their stockholders. In contrast, in those situations in which we have inferred a federal private cause of action not expressly provided, there has generally been a clearly articulated federal right in the plaintiff, e.g., Bivens v. Six Unknown Federal Narcotics Agents, supra, or a pervasive legislative scheme governing the relationship between the plaintiff class and the defendant class in a particular regard, e.g., J. I. Case Co. v. Borak, supra.Second, there is no indication whatever in the legislative history of § 610 which suggests a congressional intention to vest in corporate shareholders a federal right to damages for violation of § 610. True, in situations in which it is clear that federal law has granted a class of persons certain rights, it is not necessary to show an intention to create a private cause of action, although an explicit purpose to deny such cause of action would be controlling. [Footnote 14] But where, as here, it is at least dubious Page 422 U. S. 83 whether Congress intended to vest in the plaintiff class rights broader than those provided by state regulation of corporations, the fact that there is no suggestion at all that § 610 may give rise to a suit for damages or, indeed, to any civil cause of action reinforces the conclusion that the expectation, if any, was that the relationship Page 422 U. S. 84 between corporations and their stockholders would continue to be entrusted entirely to state law.Third, while "it is the duty of the courts to be alert to provide such remedies as are necessary to make effective the congressional purpose," J. I. Case Co. v. Borak, 377 U.S. at 377 U. S. 433, in this instance, the remedy sought would not aid the primary congressional goal. Recovery of derivative damages by the corporation for violation of § 610 would not cure the influence which the use of corporate funds in the first instance may have had on a federal election. Rather, such a remedy would only permit directors, in effect, to "borrow" corporate funds for a time; the later compelled repayment might well not deter the initial violation, and would certainly not decrease the impact of the use of such funds upon an election already past.Fourth, and finally, for reasons already intimated, it is entirely appropriate in this instance to relegate respondent and others in his situation to whatever remedy is created by state law. In addition to the ultra vires action pressed here, see n 6, supra, the use of corporate funds in violation of federal law may, under the law of some States, give rise to a cause of action for breach of fiduciary duty. See, e.g., Miller v. American Telephone & Telegraph Co., 507 F.2d 759 (CA3 1974). Corporations are creatures of state law, and investors commit their funds to corporate directors on the understanding that, except where federal law expressly requires certain responsibilities of directors with respect to stockholders, state law will govern the internal affairs of the corporation. If, for example, state law permits corporations to use corporate funds as contributions in state elections, see Miller, supra at 763 n. 4, shareholders are on notice that their funds may be so used, and have no recourse under any federal statute. We are Page 422 U. S. 85 necessarily reluctant to imply a federal right to recover funds used in violation of a federal statute where the laws governing the corporation may put a shareholder on notice that there may be no such recovery.In Borak, supra, we said:"[If] the law of the State happened to attach no responsibility to the use of misleading proxy statements, the whole purpose of [§ 14(a) of the Securities Exchange Act of 1934] might be frustrated."377 U.S. at 377 U. S. 434-435. Here, committing respondent to state-provided remedies would have no such effect. In Borak, the statute involved was clearly an intrusion of federal law into the internal affairs of corporations; to the extent that state law differed or impeded suit, the congressional intent could be compromised in state-created causes of action. In this case, Congress was concerned not with regulating corporations as such, but with dulling their impact upon federal elections. As we have seen, the existence or nonexistence of a derivative cause of action for damages would not aid or hinder this primary goal.Because injunctive relief is not presently available in light of the Amendments, and because implication of a federal right of damages on behalf of a corporation under § 610 would intrude into an area traditionally committed to state law without aiding the main purpose of § 610, we reverse.It is so ordered

U.S. Supreme CourtCort v. Ash, 422 U.S. 66 (1975)Cort v. AshNo. 73-1908Argued March 18, 1975Decided June 17, 1975422 U.S. 66SyllabusRespondent stockholder brought this action seeking damages in favor of petitioner Bethlehem Steel Corp., a Delaware corporation, and injunctive relief because of advertisements in connection with the 1972 Presidential election that petitioner corporate directors had authorized from general corporate funds in alleged violation of 18 U.S.C. § 610, which prohibits corporations from making contributions or expenditures in connection with specified federal elections. Respondent alleged jurisdiction under 28 U.S.C. § 1331, and sought to state a private claim for relief under 18 U.S.C. § 610, and also invoked pendent jurisdiction for an ultra vires claim under Delaware law. The District Court's denial of a preliminary injunction was upheld on appeal, following which respondent dropped the pendent claim rather than post security for expenses under state law before proceeding with that claim. The District Court then granted petitioners' motion for summary judgment. The Court of Appeals reversed, holding that the passage of the election had not mooted the case, since damages were sought, and that"a private cause of action, whether brought by a citizen to secure injunctive relief or by a stockholder to secure injunctive or derivative damage relief [is] proper to remedy violation of § 610."After the Court of Appeals decision Congress enacted the Federal Election Campaign Act Amendments of 1974 (hereinafter the Amendments), under which, inter alia, the Federal Election Commission can receive citizen complaints of statutory violations and, where warranted, request the Attorney General to seek injunctive action.Held:1. The Amendments constitute an intervening law that relegates to the Commission's cognizance respondent's complaint as citizen or stockholder for injunctive relief against any alleged violations of § 610 in future elections, since this Court must examine this case according to the law existing at the time of its decision. United States v. Schooner Peggy, 1 Cranch 103, 5 U. S. 110; Bradley v. Richmond School Board, 416 U. S. 696, 416 U. S. 711. Pp. 422 U. S. 74-77. Page 422 U. S. 672. Respondent stockholder's derivative suit with regard to the alleged 1972 violation cannot be implied under 18 U.S.C. § 610, and respondent's remedy, if any, must be under Delaware's corporation law. Pp. 422 U. S. 77-85.(a) Section 610 was primarily concerned not with the internal relations between corporations and stockholders, but with corporations as a source of aggregated wealth, and therefore of potential corrupting influence; thus, this statute differs from other criminal statutes in which private causes of action have been inferred because of a clearly articulated federal right in the plaintiff, e.g., Bivens v. Six Unknown Federal Narcotics Agents, 403 U. S. 388, or a pervasive legislative scheme governing the relationship between the plaintiff class and the defendant class in a particular regard, e.g., J. I. Case Co. v. Borak, 377 U. S. 426. Pp. 422 U. S. 78-82.(b) The legislative history of § 610 suggests no congressional intention to vest in corporate shareholders a federal right to damages for a violation of the statute. Pp. 422 U. S. 82-84.(c) A private remedy would not further the statutory purpose of dulling corporate influence on federal elections, since any compelled repayment to the corporation might well not deter the initial violation. P. 422 U. S. 84.(d) The cause of action is one traditionally relegated to state law in an area of primarily state concern. In addition to the ultra vires claim urged by respondent the alleged misuse of corporate funds might, under the law of some States, give rise to a cause of action for breach of a fiduciary duty. Pp. 422 U. S. 84-85.496 F.2d 416, reversed.BRENNAN, J., delivered the opinion for a unanimous Court. Page 422 U. S. 68

1960_315

MR. JUSTICE BRENNAN delivered the opinion of the Court.This case is the first contested licensing proceeding to be decided by the Atomic Energy Commission under the Atomic Energy Act of 1954, 68 Stat. 919, 42 U.S.C. § 2011 et seq. It presents the question whether the Commission erred in continuing in effect a provisional construction permit which authorizes the petitioner Power Reactor Development Company to construct, but not to operate, a fast-neutron breeder reactor for the generation of electric power. The Court of Appeals for the District of Columbia Circuit set that order aside. 108 U.S.App.D.C. 97, 280 F.2d 645 (1960). We granted certiorari, 1960, 364 U.S. 889, on petitions of the United States and of Power Reactor Development Company (hereafter PRDC), to decide an important question of the scope of the Commission's power under the Atomic Energy Act of 1954.Stated more precisely, the question before us is whether the Commission, in issuing a permit for the construction of a facility which will utilize nuclear materials, such as the power reactor presently involved, must make the same definitive finding of safety of operation as it admittedly will have to make before it licenses actual operation of the facility. The Court of Appeals said:"It is undisputed that the Commission must make such a finding when it authorizes operation. The question is whether it must make such a finding when it authorizes construction. In our opinion, it must."108 U.S.App.D.C. at 100, 280 F.2d at 648. Petitioners agree that some finding directed to safety of operation must be made at the construction permit stage of the proceeding, but argue that the Court of Appeals erred in holding that the Commission must have the same degree of certitude at this preliminary point as when it licenses operation. In order to understand how the controversy arises and what is involved in Page 367 U. S. 399 its resolution, it will be necessary to state the proceedings in the case at some length, and then describe in detail the government statute and administrative regulations. For the decision of this case ultimately turns on a comparison of what the Commission found with what the statute and regulations require.The case began on January 7, 1956, when PRDC filed with the Commission (hereafter sometimes referred to as the AEC) an application to construct and operate a developmental power reactor of a relatively new type. This device has two characteristics which distinguish it from other nuclear reactors. First, the neutrons which fly about inside the reactor (to use crude but graphic layman's terminology) and split atoms of fissionable Uranium-235 -- thus releasing new neutrons and energy in the form of heat -- are "fast" neutrons. That is, they travel at a velocity of about 10,000 miles per second, much faster than neutrons in ordinary reactors. Second, this reactor is a "breeder": it has the property of being able to produce about 1.2 times as much fissionable material as it consumes. This result comes about through a sort of modern alchemy; when the neutrons fly outside the inner core of the reactor, which is composed of fissionable U-235, they enter a blanket of nonfissionable U-238. Atoms in this blanket are changed, when struck by a neutron, into Plutonium, itself a fissionable fuel which can be removed from the reactor and be put to possible use in other installations. Thus, the reactor "breeds" Plutonium faster than it uses up U-235. It not only generates energy to produce electric power, it also creates new reactor fuel. This "breeder" effect is attainable because of the use of fast neutrons. Two boron control rods inserted into the reactor are a means designed to reduce its power level at any time. And, in addition to these rods, eight more boron rods are suspended by an electromagnet over the reactor; in case the reactivity rises to a dangerously Page 367 U. S. 400 high level, these safety rods are intended to drop into the reactor automatically and shut it down immediately. The whole machine is housed in a series of thick concrete, graphite, and steel layers, all underground. Over this entire complex is placed a football-shaped building, enclosed in a two-inch steel shield capable of containing an explosion equal in force to 1,000 pounds of TNT, which is greater than any explosion which any of the experts who testified in this case believes is at all likely to result from an accident in the operation of the reactor. The application, after describing the reactor in much greater detail than this rudimentary summary, went on to provide that the reactor would be located at Lagoona Beach, Mich., on the shores of Lake Erie, about 35 miles from the center of Detroit, Mich., and about 30 miles from the center of Toledo, Ohio.The Commission took the case under advisement and, on August 4, 1956, despite a report of its Advisory Committee on Reactor Safeguards which was at best noncommittal about the probable safety of the proposed reactor in operation, issued a provisional construction permit without having held public hearings as the law at that time permitted it to do. This permit was subject to the following condition:"The conversion of this permit to a license is subject to submittal by PRDC to the Commission (by amendment of the application) of the complete, final Hazards Summary Report (portions of which may be submitted and evaluated from time to time). The final Hazards Summary Report must show that the final design provides reasonable assurance . . . that the health and safety of the public will not be endangered by operation of the reactor. . . ."On August 31, 1956, in accordance with the Commission's then existing rules of practice, the respondents in Page 367 U. S. 401 this Court, International Union of Electrical, Radio, and Machine Workers, United Automobile, Aircraft, and Agricultural Implement Workers of America, and United Papermakers and Paperworkers, petitioned the Commission for permission to intervene and oppose continuation in effect of PRDC's provisional construction permit. The AEC granted permission to intervene on October 8, 1956, and set the case down for a hearing before one of its hearing examiners. Extensive hearings were held between January 8, 1957, and August 7, 1957, and, on November 22, 1957, in accordance with the AEC's order setting the case for hearing before him, the examiner, instead of issuing an initial decision and opinion of his own, transferred and certified the record of the hearings to the full Commission for its consideration. Oral argument was had before the Commission on May 29, 1958. On December 10, 1958, the Commission rendered its "Opinion and Initial Decision" continuing PRDC's permit in effect subject to the same condition recited above. To its opinion were appended extensive findings of fact, including Finding 22, which is of central importance to the decision of this case. That finding reads as follows:"22. The Commission finds reasonable assurance in the record that a utilization facility of the general type proposed in the PRDC application and amendments thereto can be constructed and will be able to be operated at the location proposed without undue risk to the health and safety of the public."Commissioners Vance and Floberg joined in the opinion. Commissioner Graham filed a short concurring opinion agreeing with the Commission's basic safety findings, just quoted, but doing so in much shorter compass than the majority. Commissioners Libby and McCone (the chairman) took no part in the decision. The result of this initial opinion was an order continuing PRDC's provisional Page 367 U. S. 402 construction permit in effect, but containing the same condition which the original permit, issued on August 4, 1956, had contained.The intervening unions, as was their right, filed detailed exceptions to this initial decision. The Commission fully reconsidered all the contentions and reviewed the evidence presented at the lengthy hearings, with particular attention to the testimony of the scientific experts, several of them members of the Advisory Committee on Reactor Safeguards, who had testified. On May 26, 1959, the Commission issued its "Opinion and Final Decision," dealing with all questions presented in even greater detail and reaffirming its initial decision. The Commission emphasized that"public safety is the first, last, and a permanent consideration in any decision on the issuance of a construction permit or a license to operate a nuclear facility."Even after operation of the reactor is licensed -- if it ever is -- the Commission, it said, will retain jurisdiction over PRDC's activities to ensure that the highest safety standards are maintained. The opinion went on to examine the suitability of the proposed site, noted that it was near a great population center, and nevertheless concluded that, at the present stage, there was reasonable assurance that the general type of reactor proposed by PRDC would be safe enough at that location. The Commission pointed out, however, that its action in allowing PRDC to proceed with construction was, by its nature, tentative and preliminary, and that it was by no means committed to the issuance of an operating license. "PRDC has been on notice since before the first shovel of dirt was moved," it said,"that its construction permit is provisional upon further demonstration of many technological and financial facts, including the complete safety of the reactor."A more severe safety test would have to be passed when the reactor was completed, the opinion said, since"[t]he degree of 'reasonable assurance' . . . Page 367 U. S. 403 that satisfies us . . . for purposes of the provisional construction permit would not be the same as we would require in considering the issuance of the operating license."The Commission then made new findings of fact, including the following counterpart of its initial Finding 22:"22. The Commission finds reasonable assurance in the record, for the purposes of this provisional construction permit, that a utilization facility of the general type proposed in the PRDC Application and amendments thereto can be constructed and operated at the location without undue risk to the health and safety of the public."All three of the Commissioners who took part in the case joined in this final decision, and the Commission entered its final order continuing in effect the PRDC provisional construction permit, but again subject to the condition that a more extensive safety investigation, and a definitive safety finding, would have to be made before operation was permitted.The intervening unions, respondents in this Court, then petitioned the Court of Appeals for the District of Columbia Circuit to review and set aside this order of the Commission. Only the final order continuing the permit in effect was drawn in question. No complaint was made of the original ex parte grant of the permit in 1956. PRDC intervened in the Court of Appeals in support of the AEC. On June 10, 1960, by a divided vote, a three-judge panel of the Court of Appeals set aside the AEC's order and remanded the case to the Commission. A petition for rehearing en banc was denied, two judges dissenting, and we brought the case here.We turn now to an examination of the statutes and regulations pursuant to which the Commission purported to continue in effect PRDC's construction permit. The Page 367 U. S. 404 basic provision is § 104b of the Atomic Energy Act of 1954, 42 U.S.C. § 2134(b), which authorizes the AEC to"issue licenses to persons applying therefor for utilization and production facilities involved in the conduct of research and development activities. . . . In issuing licenses under this subsection, the Commission shall impose the minimum amount of such regulations and terms of license as will permit the Commission to fulfill its obligations under this chapter to promote the common defense and security and to protect the health and safety of the public. . . ."Two things about this section should be emphasized. First, there is no doubt that the term "licenses" as used therein includes the provisional construction permit which PRDC has received. The last sentence of § 185, 42 U.S.C. § 2235, expressly so provides, as we shall soon see. And second, there is also no doubt that construction permits, like all other licenses, can be issued only consistently with the health and safety of the public. But the responsibility for safeguarding that health and safety belongs under the statute to the Commission. And § 104b, especially when read in connection with the general rulemaking power conferred by § 161(i)(3), 42 U.S.C. § 2201(i)(3), clearly contemplates that the Commission shall by regulation set forth what the public safety requires as a prerequisite to the issuance of any license or permit under the Act.The issuance of construction permits is subject to § 185, 42 U.S.C. § 2235. That section provides that"All applicants for licenses to construct or modify production or utilization facilities shall, if the application is otherwise acceptable to the Commission, be initially granted a construction permit. The construction permit shall state the earliest and latest dates for the completion of the construction or modification. Unless the construction or modification of the facility is completed by the completion date, the Page 367 U. S. 405 construction permit shall expire, and all rights thereunder be forfeited, unless, upon good cause shown, the Commission extends the completion date. Upon the completion of the construction or modification of the facility, upon the filing of any additional information needed to bring the original application up to date, and upon finding that the facility authorized has been constructed and will operate in conformity with the application as amended and in conformity with the provisions of this chapter and of the rules and regulations of the Commission, and in the absence of any good cause being shown to the Commission why the granting of a license would not be in accordance with the provisions of this chapter, the Commission shall thereupon issue a license to the applicant. For all other purposes of this chapter, a construction permit is deemed to be a 'license.'"It is clear from the face of this statute -- and all parties agree -- that Congress contemplated a step-by-step procedure. First, an applicant would have to get a construction permit, then he would have to construct his facility, and then he would have to ask the Commission to grant him a license to operate the facility. This procedure is described in its general outlines in Marks and Trowbridge, Framework for Atomic Industry, 76-77 (1955). See also Green, The Law of Reactor Safety, 12 Vand.L.Rev. 112, 121-127 (1958). The second step of the procedure, the application for and granting of an operating license, is governed by § 182a, 42 U.S.C. § 2232(a). That provision reads, in pertinent part:"In connection with applications for licenses to operate production or utilization facilities, the applicant shall state such technical specifications . . . and such other information as the Commission may, by rule or regulation, deem necessary in order to enable it to find that the utilization or production of special Page 367 U. S. 406 nuclear material will be in accord with the common defense and security and will provide adequate protection to the health and safety of the public."It is clear from this provision that, before licensing the operation of PRDC's reactor, the AEC will have to make a positive finding that operation of the facility will "provide adequate protection to the health and safety of the public." What is not clear, and what is at the center of the controversy in this case, is whether the Commission must also have made such a finding when it issued PRDC's construction permit. There is nothing on the face of either § 182 or § 185 which tells us what safety findings must be made before this preliminary step is taken. We know, however, from § 104b that some such finding must be made. For enlightenment on the nature of this finding, both parties urge us to examine the Commission's regulations, and accordingly we proceed to do so.The crucial regulation for our purposes is the Commission's regulation 50.35, 10 CFR § 50.35:"§ 50.35. Extended time for providing technical information. Where, because of the nature of a proposed project, an applicant is not in a position to supply initially all of the technical information otherwise required to complete the application, he shall indicate the reason, the items or kinds of information omitted, and the approximate times when such data will be produced. If the Commission is satisfied that it has information sufficient to provide reasonable assurance that a facility of the general type proposed can be constructed and operated at the proposed location without undue risk to the health and safety of the public and that the omitted information will be supplied, it may process the application and issue a construction permit on a provisional basis without the omitted information subject Page 367 U. S. 407 to its later production and an evaluation by the Commission that the final design provides reasonable assurance that the health and safety of the public will not be endangered."This regulation obviously elaborates upon and describes in fuller detail the step-by-step licensing procedure contemplated by §§ 182 and 185. It states, pursuant to the authority conferred by §§ 104b and 161(i)(3), what safety findings shall be required at each stage of the proceeding. There is general agreement that the second safety finding referred to, "that the final design provides reasonable assurance that the health and safety of the public will not be endangered," comports with the requirements of § 182 concerning the issuance of a license to operate. There is also agreement that the regulation's first required safety finding,"that [the AEC] has information sufficient to provide reasonable assurance that a facility of the general type proposed can be constructed and operated at the proposed location without undue risk to the health and safety of the public,"is a valid exercise of the rulemaking power conferred upon the AEC by statute, and requires that some finding as to safety of operation be made even before a provisional construction permit is granted. The question is whether that first finding must be backed up with as much conviction as to the safety of the final design of the specific reactor in operation as the second, final finding must be.We think the great weight of the argument supports the position taken by PRDC and by the Commission, that Reg. 50.35 permits the Commission to defer a definitive safety finding until operation is actually licensed. The words of the regulation themselves certainly lean strongly in that direction. The first finding is to be made, by definition, on the basis of incomplete information, and concerns only the "general type" of reactor proposed. Page 367 U. S. 408 The second finding is phrased unequivocally in terms of "reasonable assurance," while the first speaks more tentatively of "information sufficient to provide reasonable assurance." The Commission, furthermore, had good reason to make this distinction. For nuclear reactors are fast-developing and fast-changing. What is up to date now may not, probably will not, be as acceptable tomorrow. Problems which seem insuperable now may be solved tomorrow, perhaps in the very process of construction itself. We see no reason why we should not accord to the Commission's interpretation of its own regulation and governing statute that respect which is customarily given to a practical administrative construction of a disputed provision. Particularly is this respect due when the administrative practice at stake"involves a contemporaneous construction of a statute by the men charged with the responsibility of setting its machinery in motion; of making the parts work efficiently and smoothly while they are yet untried and new."Norwegian Nitrogen Products Co. v. United States, 288 U. S. 294, 288 U. S. 315 (1933). And finally, and perhaps demanding particular weight, this construction has time and again been brought to the attention of the Joint Committee of Congress on Atomic Energy, which, under § 202 of the Act, 42 U.S.C. § 2252, has a special duty during each session of Congress"to conduct hearings in either open or executive session for the purpose of receiving information concerning the development, growth, and state of the atomic energy industry,"and to oversee the operations of the AEC. See, e.g., Hearings on Development, Growth, and State of the Atomic Energy Industry, 84th Cong., 2d Sess., p. 106 (1956); Hearings on Development, etc., 85th Cong., 2d Sess., pp. 119-121 (1958); Hearings on Development, etc., 86th Cong., 2d Sess., pp. 103-109, 677-678 (1960); Hearings on Development, etc., 87th Cong., 1st Sess., pp. 29-32 (1961); Hearings on Page 367 U. S. 409 Governmental Indemnity for Private Licensees and AEC Contractors Against Reactor Hazards, 84th Cong., 2d Sess., pp. 62-65 (1956); A Study of AEC Procedures and Organization in the Licensing of Reactor Facilities, 85th Cong., 1st Sess., pp. 11-14, 100-108 (Joint Comm. Print 1957). No change in this procedure has ever been suggested by the Committee, although it has on occasion been critical of other aspects of the PRDC proceedings not before us. It may often be shaky business to attribute significance to the inaction of Congress, but, under these circumstances and considering especially the peculiar responsibility and place of the Joint Committee on Atomic Energy in the statutory scheme, we think it fair to read this history as a de facto acquiescence in and ratification of the Commission's licensing procedure by Congress. Cf., e.g., Ivanhoe Irr. Dist. v. McCracken, 357 U. S. 275, 357 U. S. 292-294 (1958); Brooks v. Dewar, 313 U. S. 354, 313 U. S. 360-361 (1914). This same procedure has been used in each of the nine instances in which the Commission has granted a provisional construction permit for a developmental nuclear power reactor, e.g., Yankee Atomic Elec. Co., CPPR-5 (AEC 1957), and we hold that it was properly used in this case.It is plain that the statute and regulations, as so construed and applied, were complied with fully. The Commission did not, as respondents' argument seems at times to suggest, find merely that the construction of the reactor would present no safety problem. The Commission's opinion and findings clearly were deeply concerned about the prospective safety of operation of the proposed reactor. Admitting that, on the basis of the facts before it, it was unable to make a definitive finding of safety, the Commission nevertheless found -- and respondents do not deny that the finding was supported by substantial evidence -- that it had information sufficient to provide Page 367 U. S. 410 reasonable assurance that the general type of reactor proposed could be operated without undue risk to the health and safety of the public. Its Finding 22, which we have quoted, was in the very words of Reg. 50.35, except for the insertion of the phrase, "for the purposes of this provisional construction permit." This phrase was merely declaratory of the nature of the proceeding before the Commission, and in no way denigrated the finding as to safety of operation.Respondents contend nevertheless that their construction of the statute is compelled by the legislative history. Since the Court of Appeals relied heavily on this history, we have studied it carefully. Two incidents are cited in particular. First, the Joint Committee stated in its report on the bill which became the Atomic Energy Act of 1954, and which when reported contained §§ 182 and 185 in substantially their present shape, that "[s]ection 185 . . . requires the issuance of a license if the construction is carried out in accordance with the terms of the construction permit." S.Rep.No. 1699, 83d Cong., 2d Sess., p. 28 (1954); H.R.Rep.No. 2181, 83d Cong., 2d Sess., p. 28 (1954). The best we can say about this statement, with all deference, is that it must have been inadvertent. Witnesses who appeared before the Joint Committee at the hearings on the bill had made the very complaint that under the words of the bill as proposed a company might invest large sums in construction of a reactor, and then be denied the right to operate it. This situation, they claimed, was unfair, and would substantially discourage the private investment in the field of atomic power which it was one of the bill's major purposes to stimulate. See Hearings before the Joint Committee on Atomic Energy on the Bill to Amend the Atomic Energy Act of 1946, 83d Cong., 2d Sess., Pt. I., pp. 113, 119 (statement of Paul W. McQuillen, representing Page 367 U. S. 411 the Dow Chemical-Detroit Edison and Associates atomic power development project, predecessors of PRDC); pp. 226-227 (statement of E. H. Dixon, chairman of the Committee on Atomic Power of the Edison Electric Institute and president of Middle-South Utilities, Inc.); p. 417 (statement of the Special Committee on Atomic Energy of the Association of the Bar of the City of New York). In spite of these pleas, however, the bill was unchanged. Industry spokesmen renewed the argument the next year, when they sought unsuccessfully to have § 185 amended. Hearings on Development, etc., 84th Cong., 1st Sess., pp. 258, 261 (1955). Even a glance at § 185 suffices to show that issuance of a construction permit does not make automatic the later issuance of a license to operate. For that section sets forth three conditions, in addition to the completion of the construction, which must be met before an operating license is granted: (1) filing of any additional information necessary to bring the application up to date -- information which will necessarily in this case include detailed safety data concerning the final design of petitioner's reactor; (2) a finding that the reactor will operate in accordance with the act and regulations -- i.e., that the safety and health of the public will be adequately protected -- and with the construction permit itself, which is expressly conditioned upon a full investigation and finding of safety before operation is permitted; and (3) the absence of any good cause why the granting of a license to operate would not be in accordance with the Act -- e.g., a showing by respondent unions, who will have full rights to appear and contest the issuance of an operating license, that the reactor may not be reasonably safe.Respondents rely more heavily on another event during the debates on this bill on the floor of the Senate. Senator Humphrey, an opponent of the bill, expressed a Page 367 U. S. 412 desire that it be made clear that "the construction permit is equivalent to a license," and that "the revised section 182 on license application . . . appl[ies] directly to construction permits." 100 Cong.Rec. 12014 (July 26, 1954). Senator Hickenlooper, floor manager of the bill and the ranking Senate member of the Joint Committee on Atomic Energy, indicated that he agreed with this construction of §§ 182 and 185. Senator Humphrey wanted these matters made clear, because he feared that otherwise a construction permit could be easily obtained and substantial investment made in construction, and then the Commission would feel obliged, perhaps under pressure, to issue an operating license in order that this investment should not go to waste. The language used in the exchange between Senators Humphrey and Hickenlooper is susceptible, if read broadly and out of context, of the construction which respondents attribute to it, namely, that no § 185 construction permit may be issued unless the Commission has made the same "safety of operation" finding which it must make under § 182a before allowing actual operation. But the context of the exchange makes it clear that no such implication was intended by the participants. Senator Humphrey's statements were made during the consideration of an amendment which he had himself proposed on July 16. This amendment would have added the following clause to the end of § 185:"and no construction permit shall be issued by the Commission until after the completion of the procedures established by section 182 for the consideration of applications for licenses under this act."Upon being assured by Senator Hickenlooper that an earlier amendment which Senator Hickenlooper himself had offered to § 189 took care of the problem, Senator Humphrey withdrew his proposal. This amendment to Page 367 U. S. 413 § 189, which was adopted, was concerned solely with hearings and judicial review. Plainly, Senator Humphrey's concern was not with the substantive safety findings necessary to the issuance of a construction permit, but rather with the procedural safeguards with which that issuance should, in his opinion, be surrounded. The reference to the application of § 182 to construction permits was made not with § 182a in mind -- that subsection sets out the substantive safety standard for the issuance of an operating license -- but rather with a view to the application of § 182b, about which Senator Humphrey particularly asked Senator Hickenlooper during the exchange on the floor referred to, and which merely provides that notice of a license application must be published and given to any appropriate regulatory agencies, a procedural requirement which was fully satisfied in this case. This interpretation of the meaning of Senator Humphrey's remarks is borne out by a statement of Representative Holifield, who, together with Representative Price, had dissented from the favorable report of the Joint Committee, precisely because, inter alia, under the bill as reported, a construction permit did not have to be preceded by the same procedures as an operating license. See S.Rep.No. 1699, 83d Cong., 2d Sess., p. 123 (1954); H.R.Rep.No. 2181, 83d Cong., 2d Sess., p. 123 (1954). Representative Price wanted the same amendment added to § 185 which Senator Humphrey proposed, and he characterized this amendment as necessary to ensure "that the same procedural safeguards in the case of licenses be applied to construction permits." 100 Cong.Rec. 10959 (July 19, 1954). We think, therefore, that Senator Humphrey's statement referred only to procedural prerequisites of construction permits, and had nothing to do with the substantive safety considerations which this case involves. If there were any doubt about this matter, the Page 367 U. S. 414 consistent administrative practice, made known to Congress many times and never disturbed by it, would dictate this conclusion.The Court of Appeals put forward as an alternative basis for its decision the holding that, under the law, the Commission may not authorize the construction of a reactor near a large population center without "compelling reasons" for doing so, 108 U.S.App.D.C. at 103-104, 280 F.2d at 651-652, and that no such reasons had been found by the AEC in this case. It is not clear whether respondents have abandoned that contention in this Court, and it is likewise uncertain whether they ever presented it to the Commission, a step which would ordinarily be a prerequisite to its consideration by the Court of Appeals. In any event, the position is without merit. The statute and regulations say nothing about "compelling reasons." Of course, Congress (and the Commission, too, for that matter) had the problem of safety uppermost in mind, and, of course, that problem is most acute when a reactor, potentially dangerous, is located near a large city. But the Commission found reasonable assurance, for present purposes, that the reactor could be safely operated at the proposed location, and that is enough to satisfy the requirements of law. The Commission recognized that the site and all its properties are among the most important ingredients of a finding of safety vel non. It considered the site along with all the other relevant data. There is no warrant in the statute for setting aside the Commission's conclusion.We hold, therefore, that the Court of Appeals erred in setting aside the order of AEC continuing PRDC's provisional construction permit in effect. We deem it appropriate to add a few words concerning the fears of nuclear disaster which respondents so urgently place before us. The respondents' argument is tantamount to Page 367 U. S. 415 an insistence that the Commission cannot be counted on, when the time comes to make a definitive safety finding, wholly to exclude the consideration that PRDC will have made an enormous investment. The petitioners concede that the Commission is absolutely denied any authority to consider this investment when acting upon an application for a license for operation. PRDC has been on notice long since that it proceeds with construction at its own risk, and that all its funds may go for naught. With its eyes open, PRDC has willingly accepted that risk, however great. No license to operate may be issued to PRDC until a full hazards report has been filed, until the AEC's Advisory Committee on Reactor Safeguards makes a full investigation and public report on safety to the Commission, until the Commission itself, after notice and hearings at which respondents, if they desire, may be heard, has made the "safety of operation" finding required by § 182a and Reg. 50.35, and until the other requirements of § 185 have been met. It may be that an operating license will never be issued. If one is, that will not be the end of the matter. The respondents may have judicial review. Moreover, the Commission's responsibility for supervision of PRDC continues. For, under Reg. 50.57, 10 CFR § 50.57, operation at full power (100,000 electric kilowatts) will not be permitted until several steps of gradually increasing operation have been successfully mastered, with a full public hearing at each step, and no further advance permitted without the AEC's being fully satisfied that a step-up will meet the high safety standards imposed by law. This is the multi-step scheme which Congress and the Commission have devised to protect the public health and safety. We hold that the actions of the Commission up to now have been within the Congressional authorization. We cannot assume that the Commission will exceed its powers, or that these Page 367 U. S. 416 many safeguards to protect the public interest will not be fully effective.Accordingly, the judgment is reversed, and the causes are remanded to the Court of Appeals for further proceedings consistent with this opinion.Reversed

U.S. Supreme CourtPower Reactor Development Co. v. Electricians, 367 U.S. 396 (1961)Power Reactor Development Co. v. International Union ofElectrical, Radio and Machine Workers, AFL-CIONo. 315Argued April 26-27, 1961Decided June 12, 1961*367 U.S. 396SyllabusUnder §§ 104b and 185 of the Atomic Energy Act, the Atomic Energy Commission issued a provisional construction permit authorizing a private corporation to construct, but not to operate, on the shores of Lake Erie about 35 miles from the center of Detroit and about 30 miles from the center of Toledo, a fast-neutron breeder reactor for the generation of electric power, subject to the condition that, before issuance of a license to operate it, the final hazards summary report must show that"the final design provides reasonable assurance . . . that the health and safety of the public will not be endangered by operation of the reactor."After three labor unions had intervened and opposed continuation of the provisional construction permit in effect, the Commission held extensive hearings, after which it found reasonable assurance in the record"that a utilization facility of the general type proposed . . . can be constructed and operated at the location without undue risk to the health and safety of the public,"and it continued in effect the provisional construction permit, subject to substantially the same condition. The Court of Appeals set aside the order and remanded the case to.the Commission.Held: the Court of Appeals erred in setting aside the Commission's order continuing the provisional construction permit in effect. Pp. 367 U. S. 398-416.(a) It is clear from the face of the statute that Congress contemplated a step-by-step procedure: first, an applicant would have to get a construction permit, then he would have to construct his facility, and then he would have to ask the Commission to grant him a license to operate the facility. Pp. 367 U. S. 403-405.(b) It is clear from § 182a that, before licensing the operation of the reactor, the Commission will have to make a positive finding Page 367 U. S. 397 that operation of the facility "will provide adequate protection to the health and safety of the public." Pp. 367 U. S. 405-406.(c) Under the provisions of the Act and the Commission's regulations, the Commission proceeded properly in issuing the provisional construction permit on a finding of reasonable assurance in the record that a utilization facility of the general type proposed could be constructed and operated at the location proposed without undue risk to the health and safety of the public, and deferring until application for the grant of an operating license a definitive finding that operation of the facility "will provide adequate protection for the health and safety of the public." Pp. 367 U. S. 406-410.(d) A different conclusion is not required by the legislative history of the Act. Pp. 367 U. S. 410-414.(e) Before granting a permit for construction of a reactor near a large population center, the Commission is not required to find that there are "compelling reasons" for doing so. P. 367 U. S. 414.(f) This Court cannot assume that the Commission will exceed its powers in passing on an application for a license to operate the reactor or that the many safeguards provided to protect the public interest will not be fully effective. Pp. 367 U. S. 414-416.108 U.S.App.D.C. 97, 280 F.2d 645, reversed, and case remanded. Page 367 U. S. 398

1997_96-1462

tional. Accordingly, further inquiry into the State's justification for § 631(b)(6) in light of its practical effect is required. Pp. 303-306.(ii) Respondents' arguments to this Court do not supply adequate justification for § 631(b)(6). The State's suggestion that the Court's summary dismissals in Goodwin and other cases should be dispositive here is rejected, because such dismissals do not have the same precedential value as do opinions of the Court after briefing and oral argument. Moreover, none of those cases involved the unique problem of the complete denial of deductions for nonresidents' alimony payments. Also unavailing is the State's reliance on a statement by one of its former Tax Commissioners that, because it cannot legally recognize the existence of non-New York source income, the State cannot recognize deductions of a personal nature unconnected with the production of income in New York. There is good reason to question whether that statement actually is a rationale for § 631(b)(6), given evidence that the State currently permits nonresidents what amounts to a pro rata deduction for personal expenses other than alimony and that, before 1987, it allowed them to deduct a pro rata share of alimony payments. Moreover, this Court is not satisfied by the State's argument that it need not consider the impact of disallowing nonresidents a deduction for alimony paid merely because alimony expenses are personal in nature, particularly in light of the inequities that could result when a nonresident with alimony obligations derives nearly all of her income from New York, a scenario that may be "typical," see Travis, supra, at 80. By requiring nonresidents to pay more tax than similarly situated residents solely on the basis of whether or not the nonresidents are liable for alimony payments, § 631(b)(6) violates the "rule of substantial equality of treatment" required by Austin, supra, at 665. Pp.306-311.(iii) The Court also rejects respondents' claim that § 631(b)(6) is justified by the State's adoption of an "income splitting" regime that creates parity in the tax treatment of the spouses in a dissolved marital relationship by allowing the alimony payer to exclude the payment from income and requiring the recipient to report a corresponding increase in income. Section 631(b)(6) disallows nonresidents' entire alimony expenses without consideration as to whether New York income tax will be paid by the alimony recipients. Respondents' analysis begs the question whether there is a substantial reason for this difference in treatment, and is therefore not appreciably distinct from the State's assertion that no justification is required because § 631(b)(6) does not concern business expenses. Pp.311-313.(iv) There is no basis in the record for the assertions of several respondents' state amici that § 631(b)(6) would have only a de minimis effect on the run-of-the-mill taxpayer or on comity among the States290because States typically give their residents a deduction or credit for income taxes paid to other States, so that the taxpayer would pay roughly the same overall tax. Further, the constitutionality of one State's statutes affecting nonresidents cannot depend upon the statutes of other States. E. g., Austin, supra, at 668. Pp. 313-314.89 N. Y. 2d 283, 675 N. E. 2d 816, reversed and remanded.O'CONNOR, J., delivered the opinion of the Court, in which STEVENS, SCALIA, SOUTER, THOMAS, and BREYER, JJ., joined. GINSBURG, J., filed a dissenting opinion, in which REHNQUIST, C. J., and KENNEDY, J., joined, post, p. 315.Christopher H. Lunding, pro se, argued the cause for petitioners. With him on the briefs was John E. Smith.Andrew D. Bing, Assistant Attorney General of New York, argued the cause for respondents. With him on the brief for respondent Commissioner of Taxation and Finance were Dennis C. Vacco, Attorney General, Barbara G. Billet, Solicitor General, and Peter H. Schiff, Deputy Solicitor General. *JUSTICE O'CONNOR delivered the opinion of the Court. The Privileges and Immunities Clause, U. S. Const., Art.IV; § 2, provides that "[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." In this case, we consider whether a provision of New York law that effectively denies only nonresident taxpayers an income tax deduction for alimony paid is consistent with that constitutional command. We conclude that because New York has not adequately justified the discrimi-* A brief of amici curiae urging affirmance was filed for the State of Ohio et al. by Betty D. Montgomery, Attorney General of Ohio, Jeffrey S. Sutton, State Solicitor, and Robert C. Maier and Barton A. Hubbard, Assistant Attorneys General, and by the Attorneys General for their respective States as follows: Winston Bryant of Arkansas, Daniel E. Lungren of California, Margery E. Bronster of Hawaii, Alan G. Lance of Idaho, James E. Ryan of Illinois, Jeremiah W (Jay) Nixon of Missouri, Joseph P. Mazurek of Montana, Michael F. Easley of North Carolina, Jan Graham of Utah, William H. Sorrell of Vermont, Darrell V. McGraw of West Virginia, and James E. Doyle of Wisconsin.291natory treatment of nonresidents effected by N. Y. Tax Law § 631(b)(6), the challenged provision violates the Privileges and Immunities Clause.I ANew York law requires nonresident individuals to pay tax on net income from New York real property or tangible personalty and net income from employment or business, trade, or professional operations in New York. See N. Y. Tax Law §§ 631(a), (b) (McKinney 1987). Under provisions enacted by the New York Legislature in 1987, the tax on such income is determined according to a method that takes into consideration the relationship between a nonresident taxpayer's New York source income and the taxpayer's total income, as reported to the Federal Government. § 601(e)(1).Computation of the income tax nonresidents owe New York involves several steps. First, nonresidents must compute their tax liability "as if" they resided in New York. Ibid. The starting point for this computation is federal adjusted gross income, which, in accordance with the Internal Revenue Code, 26 U. S. C. § 215, includes a deduction for alimony payments. After various adjustments to federal adjusted gross income, nonresidents derive their "as if" resident taxable income from which "as if" resident tax is computed, using the same tax rates applicable to residents. Once the "as if" resident tax has been computed, nonresidents derive an "apportionment percentage" to be applied to that amount, based on the ratio of New York source income to federal adjusted gross income. N. Y. Tax Law § 601(e)(1). The denominator of the ratio, federal adjusted gross income, includes a deduction for alimony paid, by virtue of 26 U. S. C. § 215, as incorporated into New York law by N. Y. Tax Law § 612(a). The numerator, New York source income, includes the net income from property, employment, or business operations in New York, but, by operation of § 631(b)(6), specifi-292cally disallows any deduction for alimony paid.1 In the last step of the computation, nonresidents multiply the "as if" resident tax by the apportionment percentage, thereby computing their actual New York income tax liability. There is no upper limit on the apportionment percentage. Thus, in circumstances where a nonresident's New York income, which does not include a deduction for alimony paid, exceeds federal adjusted gross income, which does, the nonresident will be liable for more than 100% of the "as if" resident tax.2Section 631(b)(6) was enacted as part of New York's Tax Reform and Reduction Act of 1987. Until then, nonresidents were allowed to claim a pro rata deduction for alimony expenses, pursuant to a New York Court of Appeals decision holding that New York tax law then "reflected a policy decision that nonresidents be allowed the same non-business deductions as residents, but that such deductions be allowed to nonresidents in the proportion of their New York income to income from all sources." Friedsam v. State Tax Comm'n, 64 N. Y. 2d 76, 81, 473 N. E. 2d 1181, 1184 (1984) (internal quotation marks omitted); see also Memorandum of Governor, L. 1961, ch. 68, N. Y. State Legis. Ann., 1961, p. 398 (describing former N. Y. Tax Law § 635(c)(1), which permitted nonresidents to deduct a pro rata portion of their itemized deductions, then including alimony, as "represent[ing] the fairest and most equitable solution to the problem of many years' standing" respecting the taxation of nonresidents working in New York). Although there is no legislative history explaining the rationale for its enactment,1 Section 631(b)(6) provides that "[t]he deduction allowed by section two hundred fifteen of the internal revenue code, relating to alimony, shall not constitute a deduction derived from New York sources."2See, e. g., 1990 IT-203-I, Instructions for Form IT-203, Nonresident and Part-Year Resident Income Tax Return ("To figure your income percentage, divide the amount ... in the New York State Amount column by the amount ... in the Federal Amount column .... If the amount ... in the New York State Amount column is more than the amount ... in the Federal Amount column, the income percentage will be more than 100%").293§ 631(b)(6) clearly overruled Friedsam's requirement that New York permit nonresidents a pro rata deduction for alimony payments.BIn 1990, petitioners Christopher Lunding and his wife, Barbara, were residents of Connecticut. During that year, Christopher L unding earned substantial income from the practice of law in New York. That year, he also incurred alimony expenses relating to the dissolution of a previous marriage. In accordance with New York law, petitioners filed a New York Nonresident Income Tax Return to report the New York earnings. Petitioners did not comply with the limitation in § 631(b)(6), however, instead deducting a pro rata portion of alimony paid in computing their New York income based on their determination that approximately 48% of Christopher's business income was attributable to New York.The Audit Division of the New York Department of Taxation and Finance denied that deduction and recomputed petitioners' tax liability. After recalculation without the pro rata alimony deduction, petitioners owed an additional $3,724 in New York income taxes, plus interest. Petitioners appealed the additional assessment to the New York Division of Tax Appeals, asserting that § 631(b)(6) discriminates against New York nonresidents in violation of the Privileges and Immunities, Equal Protection, and Commerce Clauses of the Federal Constitution. After unsuccessful administrative appeals, in which their constitutional arguments were not addressed, petitioners commenced an action before the Appellate Division of the New York Supreme Court, pursuant to N. Y. Tax Law § 2016 (McKinney 1987).The Appellate Division held that § 631(b)(6) violates the Privileges and Immunities Clause, relying upon its decision in Friedsam v. State Tax Comm'n, 98 App. Div. 2d 26,470 N. Y. S. 2d 848 (3d Dept. 1983), which had been affirmed by the New York Court of Appeals, see supra, at 292. 218 App.294Div. 2d 268, 639 N. Y. S. 2d 519 (3d Dept. 1996). According to the court's reasoning, "although a disparity in treatment [of nonresidents] is permitted if valid reasons exist, the Privileges and Immunities Clause proscribes such conduct ... where there is no substantial reason for the discrimination beyond the mere fact that [nonresidents] are citizens of other States." Id., at 270, 639 N. Y. S. 2d, at 520 (internal quotation marks omitted). Thus, despite the intervening enactment of § 631(b)(6), the court concluded that "there exists no substantial reason for the disparate treatment, leaving as '[t]he only criterion ... whether the payor is a resident or nonresident.'" Id., at 272, 639 N. Y. S. 2d, at 521 (quoting Friedsam, supra, at 29, 470 N. Y. S. 2d, at 850).Respondents appealed to the New York Court of Appeals, which reversed the lower court's ruling and upheld the constitutionality of § 631(b)(6). 89 N. Y. 2d 283, 675 N. E. 2d 816 (1996). In its decision, the New York Court of Appeals found that Shaffer v. Carter, 252 U. S. 37 (1920), and Travis v. Yale & Towne Mfg. Co., 252 U. S. 60 (1920), "established that limiting taxation of nonresidents to their in-State income [is] a sufficient justification for similarly limiting their deductions to expenses derived from sources producing that in-State income," and that the constitutionality of a tax law should be determined based on its "'practical effect.'" 89 N. Y. 2d, at 288, 675 N. E. 2d, at 819. The court noted that "the Privileges and Immunities Clause does not mandate absolute equality in tax treatment," and quoted from Supreme Court of N. H. v. Piper, 470 U. S. 274, 284 (1985), in explaining that the Clause is not violated where" '(i) there is a substantial reason for the difference in treatment; and (ii) the discrimination practiced against nonresidents bears a substantial relationship to the State's objective.'" 89 N. Y. 2d, at 289, 675 N. E. 2d, at 820.Applying those principles to § 631(b)(6), the court determined that the constitutionality of not allowing nonresidents to deduct personal expenses had been settled by Goodwin v.295State Tax Comm'n, 286 App. Div. 694, 146 N. Y. S. 2d 172, aff'd, 1 N. Y. 2d 680, 133 N. E. 2d 711 (1955), appeal dism'd, 352 U. S. 805 (1956), in which a New Jersey resident unsuccessfully challenged New York's denial of tax deductions respecting New Jersey real estate taxes, interest payments, medical expenses, and life insurance premiums. The Lunding court adopted two rationales from Goodwin in concluding that § 631(b)(6) was adequately justified. First, the court reasoned that because New York residents are subject to the burden of taxation on all of their income regardless of source, they should be entitled to the benefit of full deduction of expenses. Second, the court concluded that where deductions represent personal expenses of a nonresident taxpayer, they are more appropriately allocated to the State of residence. 89 N. Y. 2d, at 289-290, 675 N. E. 2d, at 820.Based on those justifications for § 631(b)(6), the court distinguished this case from its post-Goodwin decision, Golden v. Tully, 58 N. Y. 2d 1047, 449 N. E. 2d 406 (1983), in which New York's policy of granting a moving expense deduction to residents while denying it to nonresidents was found to violate the Privileges and Immunities Clause because "[n]o other rationale" besides the taxpayer's nonresidence "was ... proffered to justify the discrepancy in treating residents and nonresidents." According to the court, Golden was decided "solely on the narrow ground that the Tax Commission in its answer and bill of particulars had offered only nonresidence as the explanation for the disallowance" of nonresidents' moving expenses. 89 N. Y. 2d, at 290, 675 N. E. 2d, at 821. The court also distinguished Friedsam, supra, on the ground that § 631(b)(6) was enacted to overrule that decision. 89 N. Y. 2d, at 290, 675 N. E. 2d, at 821.As to § 631(b)(6)'s practical effect, the court noted that "nonresidents are not denied all benefit of the alimony deduction since they can claim the full amount of such payments in computing the hypothetical tax liability 'as if a resident' under Tax Law § 601(e)." Id., at 291, 675 N. E. 2d, at 821.296The court rejected petitioners' contention that the lack of legislative history explaining § 631(b)(6) was of any importance, finding that "substantial reasons for the disparity in tax treatment are apparent on the face of the statutory scheme." Ibid. The court also rejected petitioners' claims that § 631(b)(6) violates the Equal Protection and Commerce Clauses. Ibid. Those claims are not before this Court.Recognizing that the ruling of the New York Court of Appeals in this case creates a clear conflict with the Oregon Supreme Court's decision in Wood v. Department of Revenue, 305 Ore. 23,749 P. 2d 1169 (1988), and is in tension with the South Carolina Supreme Court's ruling in Spencer v. South Carolina Tax Comm'n, 281 S. C. 492, 316 S. E. 2d 386 (1984), aff'd by an equally divided Court, 471 U. S. 82 (1985), we granted certiorari. 520 U. S. 1227 (1997). We conclude that, in the absence of a substantial reason for the difference in treatment of nonresidents, § 631(b)(6) violates the Privileges and Immunities Clause by denying only nonresidents an income tax deduction for alimony payments.II AThe object of the Privileges and Immunities Clause is to "strongly ... constitute the citizens of the United States one people," by "plac[ing] the citizens of each State upon the same footing with citizens of other States, so far as the advantages resulting from citizenship in those States are concerned." Paul v. Virginia, 8 Wall. 168, 180 (1869). One right thereby secured is the right of a citizen of any State to "remove to and carryon business in another without being subjected in property or person to taxes more onerous than the citizens of the latter State are subjected to." Shaffer, supra, at 56; see also Toomer v. Witsell, 334 U. S. 385, 396 (1948); Ward v. Maryland, 12 Wall. 418, 430 (1871).Of course, nonresidents may "be required to make a ratable contribution in taxes for the support of the govern-297ment." Shaffer, 252 U. S., at 53. That duty is one "to pay taxes not more onerous in effect than those imposed under like circumstances upon citizens of the ... State." Ibid.; see also Ward v. Maryland, supra, at 430 (nonresidents should not be "subjected to any higher tax or excise than that exacted by law of ... permanent residents"). Nonetheless, as a practical matter, the Privileges and Immunities Clause affords no assurance of precise equality in taxation between residents and nonresidents of a particular State. Some differences may be inherent in any taxing scheme, given that, "[l]ike many other constitutional provisions, the privileges and immunities clause is not an absolute," Toomer, supra, at 396, and that "[a]bsolute equality is impracticable in taxation," Maxwell v. Bugbee, 250 U. S. 525, 543 (1919).Because state legislatures must draw some distinctions in light of "local needs," they have considerable discretion in formulating tax policy. Madden v. Kentucky, 309 U. S. 83, 88 (1940). Thus, "where the question is whether a state taxing law contravenes rights secured by [the Federal Constitution], the decision must depend not upon any mere question of form, construction, or definition, but upon the practical operation and effect of the tax imposed." Shaffer, supra, at 55; see also St. Louis Southwestern R. Co. v. Arkansas, 235 U. S. 350, 362 (1914) ("[W]hen the question is whether a tax imposed by a State deprives a party of rights secured by the Federal Constitution, ... [w]e must regard the substance, rather than the form, and the controlling test is to be found in the operation and effect of the law as applied and enforced by the State"). In short, as this Court has noted in the equal protection context, "inequalities that result not from hostile discrimination, but occasionally and incidentally in the application of a [tax] system that is not arbitrary in its classification, are not sufficient to defeat the law." Maxwell, supra, at 543.We have described this balance as "a rule of substantial equality of treatment" for resident and nonresident taxpay-298ers. Austin v. New Hampshire, 420 U. S. 656, 665 (1975). Where nonresidents are subject to different treatment, there must be "reasonable ground for ... diversity of treatment." Travis, 252 U. S., at 79; see also Travellers' Ins. Co. v. Connecticut, 185 U. S. 364, 371 (1902) ("It is enough that the State has secured a reasonably fair distribution of burdens"). As explained in Toomer, the Privileges and Immunities Clause bars"discrimination against citizens of other States where there is no substantial reason for the discrimination beyond the mere fact that they are citizens of other States. But it does not preclude disparity of treatment in the many situations where there are perfectly valid independent reasons for it. Thus the inquiry in each case must be concerned with whether such reasons do exist and whether the degree of discrimination bears a close relationship to them. The inquiry must also, of course, be conducted with due regard for the principle that the States should have considerable leeway in analyzing local evils and in prescribing appropriate cures." 334 U. S., at 396.Thus, when confronted with a challenge under the Privileges and Immunities Clause to a law distinguishing between residents and nonresidents, a State may defend its position by demonstrating that "(i) there is a substantial reason for the difference in treatment; and (ii) the discrimination practiced against nonresidents bears a substantial relationship to the State's objective." Piper, 470 U. S., at 284.Our concern for the integrity of the Privileges and Immunities Clause is reflected through a "standard of review substantially more rigorous than that applied to state tax distinctions, among, say, forms of business organizations or different trades and professions." Austin, supra, at 663. Thus, as both the New York Court of Appeals, 89 N. Y. 2d, at 290, 675 N. E. 2d, at 820, and the State, Brief for Respondent299Commissioner of Taxation and Finance 10-11, appropriately acknowledge, the State must defend § 631(b)(6) with a substantial justification for its different treatment of nonresidents, including an explanation of how the discrimination relates to the State's justification.BOur review of the State's justification for § 631(b)(6) is informed by this Court's precedent respecting Privileges and Immunities Clause challenges to nonresident income tax provisions. In Shaffer v. Carter, the Court upheld Oklahoma's denial of deductions for out-of-state losses to nonresidents who were subject to Oklahoma's tax on in-state income. The Court explained:"The difference ... is only such as arises naturally from the extent of the jurisdiction of the State in the two classes of cases, and cannot be regarded as an unfriendly or unreasonable discrimination. As to residents, it may, and does, exert its taxing power over their income from all sources, whether within or without the State, and it accords to them a corresponding privilege of deducting their losses, wherever these accrue. As to nonresidents, the jurisdiction extends only to their property owned within the State and their business, trade, or profession carried on therein, and the tax is only on such income as is derived from those sources. Hence there is no obligation to accord to them a deduction by reason of losses elsewhere incurred." 252 U. S., at 57.In so holding, the Court emphasized the practical effect of the provision, concluding that "the nonresident was not treated more onerously than the resident in any particular, and in fact was called upon to make no more than his ratable contribution to the support of the state government." Austin, supra, at 664.Shaffer involved a challenge to the State's denial of business-related deductions. The record in Shaffer dis-300closes that, while Oklahoma law specified that nonresidents were liable for Oklahoma income tax on "the entire net income from all property owned, and of every business, trade or profession carried on in [Oklahoma]," there was no express statutory bar preventing nonresidents from claiming the same nonbusiness exemptions and deductions as were available to resident taxpayers. See Tr. of Record in Shaffer v. Carter, o. T. 1919, No. 531, pp. 15-18 (Ch. 164, Okla. House Bill No. 599 (1910), §§ 1, 5, 6, 8); see also Brief on Behalf of Appellant in Shaffer v. Carter, o. T. 1919, No. 531, p. 91 ("In the trial court, ... the [Oklahoma] Attorney General asserted that the appellant has the same personal exemptions as a resident of Oklahoma").In Travis v. Yale & Towne Mfg. Co., a Connecticut corporation doing business in New York sought to enjoin enforcement of New York's nonresident income tax laws on behalf of its employees, who were residents of Connecticut and New Jersey. In an opinion issued on the same day as Shaffer, the Court affirmed Shaffer's holding that a State may limit the deductions of nonresidents to those related to the production of in-state income. See Travis, 252 U. S., at 75-76 (describing Shaffer as settling that "there is no unconstitutional discrimination against citizens of other States in confining the deduction of expenses, losses, etc., in the case of non-resident taxpayers, to such as are connected with income arising from sources within the taxing State"). The record in Travis clarifies that many of the expenses and losses of nonresidents that New York law so limited were business related, such as ordinary and necessary business expenses, depreciation on business assets, and depletion of natural resources, such as oil, gas, and timber. At the time that Travis was decided, New York law also allowed nonresidents a pro rata deduction for various nonbusiness expenses, such as interest paid (based on the proportion of New York source income to total income), a deduction for taxes paid (other than income taxes) to the extent those taxes were connected with New York301income, and a deduction for uncompensated losses sustained in New York resulting from limited circumstances, namely, nonbusiness transactions entered into for profit and casualty losses. Both residents and nonresidents were entitled to the same deduction for contributions to charitable organizations organized under the laws of New York. Tr. of Record in Travis v. Yale & Towne Mfg. Co., O. T. 1919, No. 548 (State of New York, The A, B, C of the Personal Income Tax Law, pp. 11-12, 14, "42, 44 (1919)). Thus, the statutory provisions disallowing nonresidents' tax deductions at issue in Travis essentially mirrored those at issue in Shaffer because they tied nonresidents' deductions to their in-state activities.Another provision of New York's nonresident tax law challenged in Travis did not survive scrutiny under the Privileges and Immunities Clause, however. Evincing the same concern with practical effect that animated the Shaffer decision, the Travis Court struck down a provision that denied only nonresidents an exemption from tax on a certain threshold of income, even though New York law allowed nonresidents a corresponding credit against New York taxes in the event that they paid resident income taxes in some other State providing a similar credit to New York residents. The Court rejected the argument that the rule was "a case of occasional or accidental inequality due to circumstances personal to the taxpayer." 252 U. S., at 80. Nor was denial of the exemption salvaged "upon the theory that non-residents have untaxed income derived from sources in their home States or elsewhere outside of the State of New York, corresponding to the amount upon which residents of that State are exempt from taxation [by New York] under this act," because "[t]he discrimination is not conditioned upon the existence of such untaxed income; and it would be rash to assume that non-residents taxable in New York under this law, as a class, are receiving additional income from outside sources equivalent to the amount of the exemptions that are accorded to citizens of New York and denied to them." Id.,302at 81. Finally, the Court rejected as speculative and constitutionally unsound the argument that States adjoining New York could adopt an income tax, "in which event, injustice to their citizens on the part of New York could be avoided by providing similar exemptions similarly conditioned." Id., at 82.In Austin, a more recent decision reviewing a State's taxation of nonresidents, we considered a commuter tax imposed by New Hampshire, the effect of which was to tax only nonresidents working in that State. The Court described its previous decisions, including Shaffer and Travis, as "establishing a rule of substantial equality of treatment for the citizens of the taxing State and nonresident taxpayers," under which New Hampshire's one-sided tax failed. 420Travis and Austin make clear that the Privileges and Immunities Clause prohibits a State from denying nonresidents a general tax exemption provided to residents, while Shaffer and Travis establish that States may limit nonresidents' deductions of business expenses and nonbusiness deductions based on the relationship between those expenses and instate property or income. While the latter decisions provide States a considerable amount of leeway in aligning the tax burden of nonresidents to in-state activities, neither they nor Austin can be fairly read as holding that the Privileges and Immunities Clause permits States to categorically deny personal deductions to a nonresident taxpayer, without a substantial justification for the difference in treatment.IIIIn this case, New York acknowledges the right of nonresidents to pursue their livelihood on terms of substantial equality with residents. There is no question that the issue presented in this case is likely to affect many individuals, given the fact that it is common for nonresidents to enter303New York City to pursue their livelihood, "it being a matter of common knowledge that from necessity, due to the geographical situation of [New York City], in close proximity to the neighboring States, many thousands of men and women, residents and citizens of those States, go daily from their homes to the city and earn their livelihood there." Travis, 252 U. S., at 80. In attempting to justify the discrimination against nonresidents effected by § 631(b)(6), respondents assert that because the State only has jurisdiction over nonresidents' in-state activities, its limitation on nonresidents' deduction of alimony payments is valid. Invoking Shaffer and Travis, the State maintains that it should not be required to consider expenses "wholly linked to personal activities outside New York." Brief for Respondent Commissioner of Taxation and Finance 24. We must consider whether that assertion suffices to substantially justify the challenged statute.ALooking first at the rationale the New York Court of Appeals adopted in upholding § 631(b)(6), we do not find in the court's decision any reasonable explanation or substantial justification for the discriminatory provision. Although the court purported to apply the two-part inquiry derived from Toomer and Piper, in the end, the justification for § 631(b)(6) was based on rationales borrowed from another case, Goodwin v. State Tax Comm'n, 286 App. Div. 694, 146 N. Y. S. 2d 172, aff'd, 1 N. Y. 2d 680, 133 N. E. 2d 711 (1955), appeal dism'd, 352 U. S. 805 (1956). There, a New Jersey resident challenged New York's denial of deductions for real estate taxes and mortgage interest on his New Jersey home, and his medical expenses and life insurance premiums. The challenge in that case, however, was to a provision of New York tax law substantially similar to that considered in Travis, under which nonresident taxpayers were allowed deductions " 'only if and to the extent that, they are connected304with [taxable] income arising from sources within the state.'" 286 App. Div., at 695, 146 N. Y. S. 2d, at 175 (quoting then N. Y. Tax Law § 360(11)).There is no analogous provision in § 631(b)(6), which plainly limits nonresidents' deduction of alimony payments, irrespective of whether those payments might somehow relate to New York-source income. Although the Goodwin court's rationale concerning New York's disallowance of nonresidents' deduction of life insurance premiums and medical expenses assumed that such expenses, "made by [the taxpayer] in the course of his personal activities, ... must be regarded as having taken place in ... the state of his residence," id., at 701, 146 N. Y. S. 2d, at 180, the court also found that those expenses "embodie[d] a governmental policy designed to serve a legitimate social end," ibid., namely, "to encourage [New York] citizens to obtain life insurance protection and ... to help [New York] citizens bear the burden of an extraordinary illness or accident," id., at 700, 146 N. Y. S. 2d, at 179.In this case, the New York Court of Appeals similarly described petitioners' alimony expenses as "wholly linked to personal activities outside the State," but did not articulate any policy basis for § 631(b)(6), save a reference in its discussion of petitioners' Equal Protection Clause claim to the State's "policy of taxing only those gains realized and losses incurred by a nonresident in New York, while taxing residents on all income." 89 N. Y. 2d, at 291, 675 N. E. 2d, at 821. Quite possibly, no other policy basis for § 631(b)(6) exists, given that, at the time Goodwin was decided, New York appears to have allowed nonresidents a deduction for alimony paid as long as the recipient was a New York resident required to include the alimony in income. See N. Y. Tax Law § 360(17) (1944). And for several years preceding § 631(b)(6)'s enactment, New York law permitted nonresidents to claim a pro rata deduction of alimony paid regardless of the recipient's residence. See Friedsam, 64 N. Y. 2d,305at 81-82, 473 N. E. 2d, at 1184 (interpreting N. Y. Tax Law § 635(c)(1) (1961)).In its reliance on Goodwin, the New York Court of Appeals also failed to account for the fact that, through its broad 1987 tax reforms, New York adopted a new system of nonresident taxation that ties the income tax liability of nonresidents to the tax that they would have paid if they were residents. Indeed, a nonresident's "as if" tax liability, which determines both the tax rate and total tax owed, is based on federal adjusted gross income from all sources, not just New York sources. In computing their "as if" resident tax liability, nonresidents of New York are permitted to consider every deduction that New York residents are entitled to, both business and personal. It is only in the computation of the apportionment percentage that New York has chosen to isolate a specific deduction of nonresidents, alimony paid, as entirely nondeductible under any circumstances. Further, after Goodwin but before this case, the New York Court of Appeals acknowledged, in Friedsam, supra, that the State's policy and statutes favored parity, on a pro rata basis, in the allowance of personal deductions to residents and nonresidents. Accordingly, in light of the questionable relevance of Goodwin to New York's current system of taxing nonresidents, we do not agree with the New York Court of Appeals that "substantial reasons for the disparity in tax treatment are apparent on the face of [§ 631(b)(6)]," 89 N. Y. 2d, at 291, 675 N. E. 2d, at 821.We also take little comfort in the fact, noted by the New York Court of Appeals, that § 631(b)(6) does not deny nonresidents all benefit of the alimony deduction because that deduction is included in federal adjusted gross income, one of the components in the nonresident's computation of his New York tax liability. See id., at 290-291, 675 N. E. 2d, at 821. That finding seems contrary to the impression of New York's Commissioner of Taxation and Finance as expressed in an advisory opinion, In re Rosenblatt, 1989-1990 Transfer306Binder, CCH N. Y. Tax Rep. , 252-998, p. 17,969 (Jan. 18, 1990), in which the Commissioner explained that "[t]he effect of [§ 631(b)(6)'s] allowance of the [alimony] deduction in the ... denominator and disallowance in the numerator is that Petitioner cannot get the benefit of a proportional deduction of the alimony payments made to his spouse." In any event, respondents have never argued to this Court that § 631(b)(6) effects anything other than a denial of nonresidents' alimony deductions. Though the inclusion of the alimony deduction in a nonresident's federal adjusted gross income reduces the nonresident's "as if" tax liability, New York effectively takes the alimony deduction back in the "apportionment percentage" used to determine the actual tax owed, because the numerator of that percentage does not include any deduction for alimony paid, while the denominator does include such a deduction.In summarizing its holding, the New York Court of Appeals explained that, because "there can be no serious argument that petitioners' alimony deductions are legitimate business expenses[,] ... the approximate equality of tax treatment required by the Constitution is satisfied, and greater fine-tuning in this tax scheme is not constitutionally mandated." 89 N. Y. 2d, at 291, 675 N. E. 2d, at 821. This Court's precedent, however, should not be read to suggest that tax schemes allowing nonresidents to deduct only their business expenses are per se constitutional, and we must accordingly inquire further into the State's justification for § 631(b)(6) in light of its practical effect.BTurning to respondents' arguments to this Court, as an initial matter, we reject the State's suggestion that this Court's summary dismissals in several other cases should be dispositive of the question presented in this case. See Brief for Respondent Commissioner of Taxation and Finance 15-30716, n. 8.3 Although we have noted that "[o]ur summary dismissals are ... to be taken as rulings on the merits in the sense that they rejected the specific challenges presented ... and left undisturbed the judgment appealed from," we have also explained that they do not "have the same precedential value ... as does an opinion of this Court after briefing and oral argument on the merits." Washington v. Confederated Bands and Tribes of Yakima Nation, 439 U. S. 463, 477, n. 20 (1979) (citations and internal quotation marks omitted). "It is not at all unusual for the Court to find it appropriate to give full consideration to a question that has been the subject of previous summary action," ibid., particularly where, as here, other courts have arrived at dissimilar outcomes. In any event, none of the cases on which the State relies involved the unique problem presented here, the complete denial of deductions for nonresidents' alimony payments.In the context of New York's overall scheme of nonresident taxation, § 631(b)(6) is an anomaly. New York tax law3 See Goodwin v. State Tax Comm'n, 286 App. Div. 694, 146 N. Y. S. 2d 172, aff'd, 1 N. Y. 2d 680,133 N. E. 2d 711 (1955) (involving State's denial of deductions not related to in-state activities, including medical expenses and life insurance premiums), appeal dism'd, 352 U. S. 805 (1956); see also Lung v. O'Chesky, 94 N. M. 802, 617 P. 2d 1317 (1980) (involving State's denial of grocery and medical tax rebates to nonresidents), appeal dism'd, 450 U. S. 961 (1981); Rubin v. Glaser, 83 N. J. 299, 416 A. 2d 382 (involving State's limitation of homestead tax rebate to principal residences of residents), appeal dism'd, 449 U. S. 977 (1980); Davis v. Franchise Tax Board, 71 Cal. App. 3d 998, 139 Cal. Rptr. 797 (1977) (involving State's denial of income averaging method of tax computation to nonresidents), appeal dism'd, 434 U. S. 1055 (1978); Wilson v. Department of Revenue, 267 Ore. 103, 514 P. 2d 1334 (1973) (involving State's limitation of nonresident's deductions to those connected with in-state income), appeal dism'd, 416 U. S. 964 (1974); Anderson v. Tiemann, 182 Neb. 393, 155 N. W. 2d 322 (1967) (involving State's denial of food sales tax credit to nonresidents), appeal dism'd, 390 U. S. 714 (1968); Berry v. State Tax Comm'n, 241 Ore. 580, 397 P. 2d 780 (1964) (involving State's limitation of nonresidents' personal deductions to those connected with in-state income), appeal dism'd, 382 U. S. 16 (1965).308currently permits nonresidents to avail themselves of what amounts to a pro rata deduction for other tax-deductible personal expenses besides alimony. Before 1987, New York law also allowed nonresidents to deduct a pro rata share of alimony payments. The New York State Tax Commissioner's advisory opinion in In re Rosenblatt indicates that § 631(b)(6) may have been intended to overrule Friedsam. See In re Rosenblatt, supra, , 252-998, at 17,969 (Section 631(b)(6) "specifically reversed Friedson [sic] v. State Tax Comm'n, 64 N. Y. 2d 76 (1984), which had allowed an alimony deduction to a nonresident according to the formula for allocation of itemized deductions by the nonresident"). Certainly, as the New York Court of Appeals found, § 631(b)(6) "had the effect of removing [the] impairment" imposed by Friedsam, 89 N. Y. 2d, at 290, 675 N. E. 2d, at 821, thereby implying a disavowal of the State's previous policy of substantial equality between residents and nonresidents.The policy expressed in Friedsam, which acknowledged the principles of equality and fairness underlying the Privileges and Immunities Clause, was not merely an "impairment," however. Although the State has considerable freedom to establish and adjust its tax policy respecting nonresidents, the end results must, of course, comply with the Federal Constitution, and any provision imposing disparate taxation upon nonresidents must be appropriately justified. As this Court has explained, where "the power to tax is not unlimited, validity is not established by the mere imposition of a tax." Mullaney v. Anderson, 342 U. S. 415, 418 (1952).To justify § 631(b)(6), the State refers to a statement, presented in 1959 by New York's then-Commissioner of Taxation and Finance before a Subcommittee of the House Judiciary Committee. In that statement, the Commissioner explained, "'[s]ince legally we do not and cannot recognize the existence of [non-New York source] income, we have felt that, in general, we cannot recognize ... other deductions,309which, in the main, are of a personal nature and are unconnected with the production of income in New York.' " Brief for Respondent Commissioner of Taxation and Finance 14 (quoting statement of Hon. Joseph H. Murphy, Taxation of Income of Nonresidents, Hearing on H. J. Res. 33 et al. and H. R. 4174 et al. before Subcommittee No.2 of the House Committee on the Judiciary, 86th Cong., 1st Sess., 98-99 (1959)). Yet there is good reason to question whether that statement actually is a rationale for § 631(b)(6), given substantial evidence to the contrary, in both the history of the State's treatment of nonresidents' alimony deductions,4 and its current treatment of other personal deductions.Moreover, to the extent that the cited testimony suggests that no circumstances exist under which a State's denial of personal deductions to nonresidents could be constrained, we reject its premise. Certainly, as the Court found in Travis, 252 U. S., at 79-80, nonresidents must be allowed tax exemptions in parity with residents. And the most that the Court has suggested regarding nonresidents' nonbusiness expenses is that their deduction may be limited to the proportion of those expenses rationally related to in-state income or activities. See Shaffer, 252 U. S., at 56-57.As a practical matter, the Court's interpretation of the Privileges and Immunities Clause in Travis and Shaffer implies that States may effectively limit nonresidents' deduction of certain personal expenses based on a reason as simple as the fact that those expenses are clearly related to residence in another State. But here, § 631(b)(6) does not incorporate such analysis on its face or, according to the New York Court of Appeals, through legislative history, see 894 See 1943 N. Y. Laws, ch. 245, § 3 (alimony deductions allowed only when recipient is subject to New York tax); 1944 N. Y. Laws, ch. 333, §2 (alimony deduction allowed to all residents and to nonresidents only if recipient is subject to New York tax); 1961 N. Y. Laws, ch. 68, § 1 (itemized deductions, including alimony, generally allowed to nonresidents in proportion to New York source income).310N. Y. 2d, at 290-291, 675 N. E. 2d, at 821. Moreover, there are situations in which § 631(b)(6) could operate to require nonresidents to pay significantly more tax than identically situated residents. For example, if a nonresident's earnings were derived primarily from New York sources, the effect of § 631(b)(6) could be to raise the tax apportionment percentage above 100%, thereby requiring that individual to pay more tax than an identically situated resident, solely because of the disallowed alimony deduction. Under certain circumstances, the taxpayer could even be liable for New York taxes approaching or even exceeding net income.There is no doubt that similar circumstances could arise respecting the apportionment for tax purposes of income or expenses based on in-state activities without a violation of the Privileges and Immunities Clause. Such was the case in Shaffer, despite the petitioner's attempt to argue that he should be allowed to offset net business income taxed by Oklahoma with business losses incurred in other States. See 252 U. S., at 57. It is one thing, however, for an anomalous situation to arise because an individual has greater profits from business activities or property owned in one particular State than in another. An entirely different situation is presented by a facially inequitable and essentially unsubstantiated taxing scheme that denies only nonresidents a tax deduction for alimony payments, which while surely a personal matter, see United States v. Gilmore, 372 U. S. 39, 44 (1963), arguably bear some relationship to a taxpayer's overall earnings. Alimony payments also differ from other types of personal deductions, such as mortgage interest and property tax payments, whose situs can be determined based on the location of the underlying property. Thus, unlike the expenses discussed in Shaffer, alimony payments cannot be so easily characterized as "losses elsewhere incurred." 252 U. S., at 57. Rather, alimony payments reflect an obligation of some duration that is determined in large measure by an individual's income generally, wherever it is earned. The311alimony obligation may be of a "personal" nature, but it cannot be viewed as geographically fixed in the manner that other expenses, such as business losses, mortgage interest payments, or real estate taxes, might be.Accordingly, contrary to the dissent's suggestion, post, at 321, 326-327, we do not propose that States are required to allow nonresidents a deduction for all manner of personal expenses, such as taxes paid to other States or mortgage interest relating to an out-of-state residence. Nor do we imply that States invariably must provide to nonresidents the same manner of tax credits available to residents. Our precedent allows States to adopt justified and reasonable distinctions between residents and nonresidents in the provision of tax benefits, whether in the form of tax deductions or tax credits. In this case, however, we are not satisfied by the State's argument that it need not consider the impact of disallowing nonresidents a deduction for alimony paid merely because alimony expenses are personal in nature, particularly in light of the inequities that could result when a nonresident with alimony obligations derives nearly all of her income from New York, a scenario that may be "typical," see Travis, supra, at 80. By requiring nonresidents to pay more tax than similarly situated residents solely on the basis of whether or not the nonresidents are liable for alimony payments, § 631(b)(6) violates the "rule of substantial equality of treatment" this Court described in Austin, 420 U. S., at 665.CRespondents also propose that § 631(b)(6) is "consistent with New York's taxation of families generally." Brief for Respondent Commissioner of Taxation and Finance 14-15. It has been suggested that one purpose of New York's 1987 tax law changes was to adopt a regime of "income splitting," under which each spouse in a marital relationship is taxed on an equal share of the total income from the marital unit. Ibid. (citing McIntyre & Pomp, State Income Tax Treatment312of Residents and Nonresidents Under the Privileges and Immunities Clause, 13 State Tax Notes 245, 249 (1997)). A similar effect is achieved in the case of marital dissolution by allowing the payer of alimony to exclude the payment from income and requiring the recipient to report a corresponding increase in income. Such treatment accords with provisions adopted in 1942 by the Federal Government as a means of adjusting tax burdens on alimony payers who, without a deduction for alimony paid, could face a tax liability greater than their remaining income after payment of alimony. See Committee Report, Revenue Act of 1942, 1942-2In the federal system, when one resident taxpayer pays alimony to another, the payer's alimony deduction is offset by the alimony income reported by the recipient, leading to parity in the allocation of the overall tax burden. Section 631(b)(6), however, disallows nonresidents' entire alimony expenses with no consideration given to whether New York income tax will be paid by the recipients. Respondents explain that such concerns are simply irrelevant to New York's taxation of nonresidents, because "[e]xtending the benefit of income splitting to nonresidents is inappropriate on tax policy grounds because nonresidents are taxed by New York on only a slice of their income-that derived from New York sources." Brief for Respondent Commissioner of Taxation and Finance 15. Such analysis, however, begs the question whether there is a substantial reason for the difference in treatment, and is therefore not appreciably distinct from the State's assertion that no such justification is required because § 631(b)(6) does not concern business expenses.Indeed, we fail to see how New York's disregard for the residence of the alimony recipient does anything more than point out potential inequities in the operation of § 631(b)(6). Certainly, the concept of income splitting works when both former spouses are residents of the313same State, because one spouse receives a tax deduction corresponding to the other's reported income, thereby making the state treasury whole (after adjustment for differences in the spouses' respective tax rates). The scheme also results in an equivalent allocation of total tax liability when one spouse is no longer a resident of the same State, because each spouse retains the burden of paying resident income taxes due to his or her own State on their share of the split income. The benefit of income splitting disappears, however, when a State in which neither spouse resides essentially imposes a surtax on the alimony, such as the tax increase New York imposes through § 631(b)(6). And, at the extreme, when a New York resident receives alimony payments from a nonresident New York taxpayer, § 631(b)(6) results in a double-taxation windfall for the State: The recipient pays taxes on the alimony but the nonresident payer is denied any deduction. Although such treatment may accord with the Federal Government's treatment of taxpayers who are nonresident aliens, see 26 U. S. C. §§ 872 and 873, the reasonableness of such a scheme on a national level is a different issue that does not implicate the Privileges and Immunities Clause guarantee that individuals may migrate between States to live and work.DFinally, several States, as amici for respondents, assert that § 631(b)(6) could not "have any more than a de minimis effect on the run-of-the-mill taxpayer or comity among the States," because States imposing an income tax typically provide a deduction or credit to their residents for income taxes paid to other States. Brief for State of Ohio et al. 8. Accordingly, their argument runs, "[a]ll things being equal ... the taxpayer would pay roughly the same total tax in the two States, the only difference being that [the taxpayer's resident State] would get more and New York less of the revenue." Ibid. There is no basis for such an assertion in314the record before us. In fact, in the year in question, Connecticut imposed no income tax on petitioners' earned income. Reply Brief for Petitioners 4, n. 1. "Nor, we may add, can the constitutionality of one State's statutes affecting nonresidents depend upon the present configuration of the statutes of another State." Austin, 420 U. S., at 668; see also Travis, 252 U. S., at 81-82.IVIn sum, we find that the State's inability to tax a nonresident's entire income is not sufficient, in and of itself, to justify the discrimination imposed by § 631(b)(6). While States have considerable discretion in formulating their income tax laws, that power must be exercised within the limits of the Federal Constitution. Tax provisions imposing discriminatory treatment on nonresident individuals must be reasonable in effect and based on a substantial justification other than the fact of nonresidence.Although the Privileges and Immunities Clause does not prevent States from requiring nonresidents to allocate income and deductions based on their in-state activities in the manner described in Shaffer and Travis, those opinions do not automatically guarantee that a State may disallow nonresident taxpayers every manner of nonbusiness deduction on the assumption that such amounts are inevitably allocable to the State in which the taxpayer resides. Alimony obligations are unlike other expenses that can be related to activities conducted in a particular State or property held there. And as a personal obligation that generally correlates with a taxpayer's total income or wealth, alimony bears some relationship to earnings regardless of their source. Further, the manner in which N ew York taxes nonresidents, based on an allocation of an "as if" resident tax liability, not only imposes upon nonresidents' income the effect of N ew York's graduated tax rates but also imports a corresponding element of fairness in allowing nonresidents a pro rata deduc-315tion of other types of personal expenses. It would seem more consistent with that taxing scheme and with notions of fairness for the State to allow nonresidents a pro rata deduction for alimony paid, as well.Under the circumstances, we find that respondents have not presented a substantial justification for the categorical denial of alimony deductions to nonresidents. The State's failure to provide more than a cursory justification for § 631(b)(6) smacks of an effort to "penaliz[e] the citizens of other States by subjecting them to heavier taxation merely because they are such citizens," Toomer, 334 U. S., at 408 (Frankfurter, J., concurring). We thus hold that § 631(b)(6) is an unwarranted denial to the citizens of other States of the privileges and immunities enjoyed by the citizens of New York.Accordingly, the decision of the New York Court of Appeals is reversed, and the case is remanded for proceedings not inconsistent with this opinion.It is so ordered

OCTOBER TERM, 1997SyllabusL UNDING ET UX. v. NEW YORK TAX APPEALS TRIBUNAL ET AL.CERTIORARI TO THE COURT OF APPEALS OF NEW YORK No. 96-1462. Argued November 5, 1997-Decided January 21, 1998New York Tax Law § 631(b)(6) effectively denies only nonresident taxpayers a state income tax deduction for alimony paid. Petitioners-a Connecticut couple required to pay higher taxes on their New York income when that State denied their attempted deduction of a pro rata portion of the alimony petitioner husband paid a previous spouse-exhausted their administrative remedies and commenced this action, asserting, among other things, that § 631(b)(6) discriminates against New York nonresidents in violation of the Privileges and Immunities Clause, U. S. Const., Art. IV, §2. The Appellate Division of the New York Supreme Court agreed and held § 631(b)(6) to be unconstitutional, but the New York Court of Appeals reversed, holding that § 631(b)(6) was adequately justified because New York residents who are subject to taxation on all of their income regardless of source should be entitled to the benefit of full deduction of expenses, while personal expenses of a nonresident taxpayer are more appropriately allocated to the State of residence. The court also noted that § 631(b)(6)'s practical effect did not deny nonresidents all benefit of the alimony deduction, because they could claim the full amount of such payments in computing their hypothetical tax liability "as if" a resident, one of the steps involved in computing nonresident tax under New York law.Held: In the absence of a substantial reason for the difference in treatment of New York nonresidents, § 631(b)(6) violates the Privileges and Immunities Clause by denying only nonresidents an income tax deduction for alimony payments. Pp. 296-315.(a) While States have considerable discretion in formulating their income tax laws, that power must be exercised within the limits of the Federal Constitution. When confronted with a challenge under the Privileges and Immunities Clause to a law distinguishing between residents and nonresidents, a State may defend its position by demonstrating that "(i) there is a substantial reason for the difference in treatment; and (ii) the discrimination practiced against nonresidents bears a substantial relationship to the State's objective." Supreme Court of N. H. v. Piper, 470 U. S. 274, 284. Thus, New York must defend §631(b)(6) with a substantial justification for its different treatment of nonresidents, including an explanation of how the discrimination relates288to the State's justification. E. g., Shaffer v. Carter, 252 U. S. 37, 55. Pp.296-299.(b) This Court's precedent respecting Privileges and Immunities Clause challenges to nonresident income tax provisions informs the review of the State's justification for § 631(b)(6). Travis v. Yale & Towne Mfg. Co., 252 U. S. 60, 80-82, and Austin v. New Hampshire, 420 U. S. 656, 665, make clear that the Clause prohibits a State from denying nonresidents a general tax exemption provided to residents, and Shaffer, supra, at 57, and Travis, supra, at 75-76, establish that States may limit nonresidents' deductions of business expenses and nonbusiness deductions based on the relationship between those expenses and in-state property or income. While the latter decisions provide States considerable leeway in aligning nonresidents' tax burden to their in-state activities, neither those decisions nor Austin can be fairly read to hold that the Clause permits States to categorically deny personal deductions to a nonresident taxpayer without a substantial justification for the difference in treatment. pp. 299-302.(c) Respondents' attempt to justify § 631 (b) (6)'s limitation on nonresidents' deduction of alimony payments by asserting that the State only has jurisdiction over their in-state activities is rejected. The State's contention that, under Shaffer and Travis, it should not be required to consider expenses "wholly linked to personal activities outside New York" does not suffice. pp. 302-314.(i) The New York Court of Appeals' decision upholding § 631(b)(6) does not contain any reasonable explanation or substantial justification for the discriminatory provision. The case on which that decision was based, Goodwin v. State Tax Commission, 286 App. Div. 694, 146 N. Y. S. 2d 172, aff'd, 1 N. Y. 2d 680, appeal dism'd, 352 U. S. 805, is of questionable relevance here, since it involved a state tax provision that is not analogous to § 631(b)(6), was rendered before New York adopted its present system of nonresident taxation, and was called into doubt in a subsequent decision. Unlike the New York Court of Appeals, this Court takes little comfort in the fact that inclusion of the alimony deduction in a nonresident's federal adjusted gross income reduces the nonresident's "as if" tax liability, because New York effectively takes the alimony deduction back in the "apportionment percentage" used to determine the actual tax owed. In summarizing its holding in the present case, the New York Court of Appeals explained that, because there could be no serious argument that petitioners' alimony deductions were legitimate business expenses, the approximate equality of tax treatment required by the Constitution was satisfied. This Court's precedent, however, should not be read to suggest that tax schemes allowing nonresidents to deduct only their business expenses are per se constitu-289Full Text of Opinion

1959_119

MR. JUSTICE HARLAN delivered the opinion of the Court.Petitioner was tried and convicted of knowingly transporting a woman in interstate commerce for the purpose Page 362 U. S. 526 of prostitution, in violation of the White Slave Traffic Act, 18 U.S.C. § 2421. At the trial, the woman, who had since the date of the offense married the petitioner, was ordered, over her objection and that of the petitioner, to testify on behalf of the prosecution. [Footnote 1] The Court of Appeals, on appeal from a judgment of conviction, affirmed the ruling of the District Court. 263 F.2d 304. As the case presented significant issues concerning the scope and nature of the privilege against adverse spousal testimony, treated last Term in Hawkins v. United States, 358 U. S. 74, we granted certiorari. 360 U.S. 908. We affirm the judgment.First. Our decision in Hawkins established, for the federal courts, the continued validity of the common law rule of evidence ordinarily permitting a party to exclude the adverse testimony of his or her spouse. However, as that case expressly acknowledged, the common law has long recognized an exception in the case of certain kinds of offenses committed by the party against his spouse. Id. at 358 U. S. 75, citing Stein v. Bowman, 13 Pet. 209, 38 U. S. 221. Exploration of the precise breadth of this exception, a matter of some uncertainty, see 8 Wigmore, Evidence (3d ed.), § 2239, can await a case where it is necessary. For present purposes, it is enough to note that every Court of Appeals which has considered the specific question now holds that the exception, and not the rule, applies to a Mann Act prosecution, where the defendant's wife was the victim of the offense. [Footnote 2] Such unanimity with respect Page 362 U. S. 527 to a rule of evidence lends weighty credentials to that view.While this Court has never before decided the question, we now unhesitatingly approve the rule followed in five different Circuits. We need not embark upon an extended consideration of the asserted bases for the spousal privilege (see Hawkins, supra, at 358 U. S. 77-78; Wigmore, op. cit., supra, § 2228(3)) and an appraisal of the applicability of each here, id., § 2239, for it cannot be seriously argued that one who has committed this "shameless offense against wifehood," id. at p. 257, should be permitted to prevent his wife from testifying to the crime by invoking an interest founded on the marital relation or the desire of the law to protect it. Petitioner's attempt to prevent his wife from testifying, by invoking an asserted privilege of his own, was properly rejected.Second. The witness wife, however, did not testify willingly, but objected to being questioned by the prosecution, and gave evidence only upon the ruling of the District Court denying her claimed privilege not to testify. We therefore consider the correctness of that ruling. [Footnote 3] Page 362 U. S. 528The United States argues that, once having held, as we do, that, in such a case as this, the petitioner's wife could not be prevented from testifying voluntarily, Hawkins establishes that she may be compelled to testify. For, it is said, that case specifically rejected any distinction between voluntary and compelled testimony. 358 U.S. at 358 U. S. 77. This argument fails to take account of the setting of our decision in Hawkins. To say that a witness spouse may be prevented from testifying voluntarily simply means that the party has a privilege to exclude the testimony; [Footnote 4] when, on the other hand, the spouse may not be compelled to testify against her will, it is the witness who is accorded a privilege. In Hawkins, the Government took the position that the spousal privilege should be that of the witness, and not that of the party, so that, while the wife could decline to testify, she could not be prevented from giving evidence if she elected not to claim a privilege which, it was said, belonged to her alone. Brief for the United States, No. 20, O.T.1958, pp. 22-43. In declining to hold that the party had no privilege, we manifestly did not thereby repudiate the privilege of the witness.While the question has not often arisen, it has apparently been generally assumed that the privilege resided in the witness as well as in the party. Hawkins referred to "a rule which bars the testimony of one spouse against the other unless both consent," supra, at 358 U. S. 78. (Emphasis supplied.) See Stein v. Bowman, supra, 13 Pet. at 38 U. S. 223 (wife cannot "by force of authority be compelled to state facts in evidence"); United States v. Mitchell, supra, 137 F.2d at 1008 ("the better view is that the privilege is that of either spouse who chooses to claim it"); Wigmore, op. cit., supra, § 2241; McCormick, Evidence, § 66, n. 3. In its Page 362 U. S. 529 Hawkins brief, the Government, while calling for the abolition of the party's privilege, urged that the common law development could be explained, and its policies fully vindicated, by recognition of the privilege of the witness. Brief, pp. 22-25, 33, 42-43; see Hawkins, supra, at 358 U. S. 77, and concurring opinion at 358 U. S. 82. At least some of the bases of the party's privilege are in reason applicable to that of the witness. As Wigmore puts it, op. cit., supra at p. 264:"[W]hile the defendant husband is entitled to be protected against condemnation through the wife's testimony, the witness wife is also entitled to be protected against becoming the instrument of that condemnation -- the sentiment in each case being equal in degree and yet different in quality."In light of these considerations, we decline to accept the view that the privilege is that of the party alone.Third. Neither can we hold that, whenever the privilege is unavailable to the party, it is ipso facto lost to the witness as well. It is a question in each case, or in each category of cases, whether, in light of the reason which has led to a refusal to recognize the party's privilege, the witness should be held compellable. Certainly, we would not be justified in laying down a general rule that both privileges stand or fall together. We turn instead to the particular situation at bar.Where a man has prostituted his own wife, he has committed an offense against both her and the marital relation, and we have today affirmed the exception disabling him from excluding her testimony against him. It is suggested, however, that this exception has no application to the witness wife when she chooses to remain silent. The exception to the party's privilege, it is said, rests on the necessity of preventing the defendant from sealing his wife's lips by his own unlawful act, see United States v. Mitchell, supra, 137 F.2d at 1008-1009; Wigmore, op cit., supra, § 2239, and it is argued that where the wife has chosen Page 362 U. S. 530 not to "become the instrument" of her husband's downfall, it is her own privilege which is in question, and the reasons for according it to her in the first place are fully applicable.We must view this position in light of the congressional judgment and policy embodied in the Mann Act. "A primary purpose of the Mann Act was to protect women who were weak from men who were bad." Denning v. United States, 247 F. 463, 465. It was in response to shocking revelations of subjugation of women too weak to resist that Congress acted. See H.R.Rep. No. 47, 61st Cong., 2d Sess., pp. 10-11. As the legislative history discloses, the Act reflects the supposition that the women with whom it sought to deal often had no independent will of their own, and embodies, in effect, the view that they must be protected against themselves. Compare 18 U.S.C. § 2422 (consent of woman immaterial in prosecution under that section). It is not for us to reexamine the basis of that supposition.Applying the legislative judgment underlying the Act, we are led to hold it not an allowable choice for a prostituted witness-wife "voluntarily" to decide to protect her husband by declining to testify against him. For if a defendant can induce a woman, against her "will," to enter a life of prostitution for his benefit -- and the Act rests on the view that he can -- by the same token, it should be considered that he can, at least as easily, persuade one who has already fallen victim to his influence that she must also protect him. To make matters turn upon ad hoc inquiries into the actual state of mind of particular women, thereby encumbering Mann Act trials with a collateral issue of the greatest subtlety, is hardly an acceptable solution.Fourth. What we have already said likewise governs the disposition of the petitioner's reliance on the fact that his marriage took place after the commission of the Page 362 U. S. 531 offense. Again, we deal here only with a Mann Act prosecution, and intimate no view on the applicability of the privilege of either a party or a witness similarly circumstanced in other situations. The legislative assumption of lack of independent will applies as fully here. As the petitioner, by his power over the witness, could, as we have considered should be assumed, have secured her promise not to testify, so, it should be assumed, could he have induced her to go through a marriage ceremony with him, perhaps "in contemplation of evading justice by reason of the very rule which is now sought to be invoked." United States v. Williams, 55 F. Supp. 375, 380.The ruling of the District Court was correctly upheld by the Court of Appeals. [Footnote 5]Affirmed

U.S. Supreme CourtWyatt v. United States, 362 U.S. 525 (1960)Wyatt v. United StatesNo. 119Argued January 13, 1960Decided May 16, 1960362 U.S. 525SyllabusPetitioner was tried and convicted in a Federal District Court of knowingly transporting a woman in interstate commerce for the purpose of prostitution, in violation of 18 U.S.C. § 2421. At the trial, the woman, who had married petitioner since the date of the offense, was ordered over her objection and that of petitioner to testify for the prosecution.Held: the ruling was correct, and the judgment is affirmed. Pp. 362 U. S. 525-531.(a) Though the common law rule of evidence ordinarily permitting a defendant to exclude the adverse testimony of his or her spouse still applies in the federal courts, there is an exception which permits the defendant's wife to testify against him when she was the victim of a violation of § 2421. Pp. 362 U. S. 526-527.(b) The privilege accorded by the general rule resides in the witness, as well as in the defendant. Pp. 362 U. S. 527-529.(c) In view of the purpose of § 2421, a prostituted witness-wife may not protect her husband by declining to testify against him. Pp. 362 U. S. 529-530.(d) A different conclusion is not required by the fact that the marriage took place after the commission of the offense. Pp. 362 U. S. 530-531.263 F.2d 304, affirmed.

1970_133

MR. JUSTICE WHITE announced the judgment of the Court and an opinion in which THE CHIEF JUSTICE, MR. JUSTICE BRENNAN, and MR. JUSTICE BLACKMUN join. *When Milton Luros returned to the United States from Europe on October 24, 1969, he brought with him in his luggage the 37 photographs here involved. United States customs agents, acting pursuant to § 305 of the Tariff Act of 1930, as amended, 46 Stat. 688, 19 U.S.C. § 1305(a), [Footnote 1] Page 402 U. S. 366 seized the photographs as obscene. They referred the matter to the United States Attorney, who, on November 6, instituted proceedings in the United States District Court for forfeiture of the material. Luros, as claimant, answered, denying the photographs were obscene and setting up a counterclaim alleging the unconstitutionality of § 1305(a) on its face and as applied to him. He demanded that a three-judge court be convened to issue an injunction prayed for in the counterclaim. The parties stipulated a time for hearing the three-judge court motion. A formal order convening the court was entered on November 20. The parties then stipulated a briefing schedule expiring on December 16. The court ordered a hearing for January 9, 1970, also suggesting the parties stipulate facts, which they did. The stipulation revealed, among other things, that some or all of the 37 photographs were intended to be incorporated in a hard cover edition of The Kama Sutra of Vatsyayana, a widely distributed book candidly describing a large number of sexual positions. Hearing was held as scheduled on January 9, and on January 27 the three-judge court filed its judgment and opinion declaring § 1305(a) unconstitutional and enjoining its enforcement against the 37 photographs, which were ordered returned to Luros. 309 F. Supp. 36 (CD Cal.1970). The judgment of invalidity rested on two grounds: first, that the section failed to comply with the procedural requirements of Page 402 U. S. 367 Freedman v. Maryland, 380 U. S. 51 (1965), and second, that, under Stanley v. Georgia, 394 U. S. 557 (1969), § 1305(a) could not validly be applied to the seized material. We shall deal with each of these grounds separately.IIn Freedman v. Maryland, supra, we struck down a state scheme for administrative licensing of motion pictures, holding"that, because only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint."380 U.S. at 380 U. S. 58. To insure that a judicial determination occurs promptly so that administrative delay does not, in itself, become a form of censorship, we further held, (1) there must be assurance,"by statute or authoritative judicial construction, that the censor will, within a specified brief period, either issue a license or go to court to restrain showing the film;" (2) "[a]ny restraint imposed in advance of a final judicial determination on the merits must similarly be limited to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution"; and (3) "the procedure must also assure a prompt final judicial decision" to minimize the impact of possibly erroneous administrative action. Id. at 380 U. S. 58-59.Subsequently, we invalidated Chicago's motion picture censorship ordinance because it permitted an unduly long administrative procedure before the invocation of judicial action, and also because the ordinance, although requiring prompt resort to the courts after administrative decision and an early hearing, did not assure "a prompt judicial decision of the question of the alleged obscenity of the film." Teitel Film Corp. v. Cusack, 390 U. S. 139, 390 U. S. 141 (1968). So, too, in Blount v. Rizzi, 400 U. S. 410 Page 402 U. S. 368 (1971), we held unconstitutional certain provisions of the postal laws designed to control use of the mails for commerce in obscene materials. Under those laws, an administrative order restricting use of the mails could become effective without judicial approval, the burden of obtaining prompt judicial review was placed upon the user of the mails, rather than the Government, and the interim judicial order, which the Government was permitted, though not required, to obtain.pending completion of administrative action was not limited to preserving the status quo for the shortest fixed period compatible with sound judicial administration.As enacted by Congress, § 1305(a) does not contain explicit time limits of the sort required by Freedman, Teitel, and Blount. [Footnote 2] These cases do not, however, require that we pass upon the constitutionality of § 1305(a), for it is possible to construe the section to bring it in harmony with constitutional requirements. Page 402 U. S. 369 It is true that we noted in Blount that "it is for Congress, not this Court, to rewrite the statute," 400 U.S. at 400 U. S. 419, and that we similarly refused to rewrite Maryland's statute and Chicago's ordinance in Freedman and Teitel. On the other hand, we must remember that,"[w]hen the validity of an act of the Congress is drawn in question, and . . . a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided."Crowell v. Benson, 285 U. S. 22, 285 U. S. 62 (1932). Accord, e.g., Haynes v. United States, 390 U. S. 85, 390 U. S. 92 (1968) (dictum); Schneider v. Smith, 390 U. S. 17, 390 U. S. 27 (1968); United States v. Rumely, 345 U. S. 41, 345 U. S. 45 (1953); Ashwander v. Tennessee Valley Authority, 297 U. S. 288, 297 U. S. 348 (1936) (Brandeis, J., concurring). This cardinal principle did not govern Freedman, Teitel, and Blount only because the statutes there involved could not be construed so as to avoid all constitutional difficulties.The obstacle in Freedman and Teitel was that the statutes were enacted pursuant to state, rather than federal, authority; while Freedman recognized that a statute failing to specify time limits could be saved by judicial construction, it held that such construction had to be "authoritative," 380 U.S. at 380 U. S. 59, and we lack jurisdiction authoritatively to construe state legislation. Cf. General Trading Co. v. State Tax Comm'n, 322 U. S. 335, 322 U. S. 337 (1944). In Blount, we were dealing with a federal statute, and thus had power to give it an authoritative construction; salvation of that statute, however, would have required its complete rewriting in a manner inconsistent with the expressed intentions of some of its authors. For the statute at issue in Blount not only failed to specify time limits within which judicial proceedings must be instituted and completed; it also failed to give any authorization at all to the administrative Page 402 U. S. 370 agency, upon a determination that material was obscene, to seek judicial review. To have saved the statute, we would thus have been required to give such authorization and to create mechanisms for carrying it into effect, and we would have had to do this in the face of legislative history indicating that the Postmaster General, when he had testified before Congress, had expressly sought to forestall judicial review pending completion of administrative proceedings. See 400 U.S. at 400 U. S. 420 n. 8.No such obstacles confront us in construing § 1305(a). In fact, the reading into the section of the time limits required by Freedman is fully consistent with its legislative purpose. When the statute, which in its present form dates back to 1930, was first presented to the Senate, concern immediately arose that it did not provide for determinations of obscenity to be made by courts, rather than administrative officers, and that it did not require that judicial rulings be obtained promptly. In language strikingly parallel to that of the Court in Freedman, Senator Walsh protested against the "attempt to enact a law that would vest an administrative officer with power to take books and confiscate them and destroy them, because, in his judgment, they were obscene or indecent," and urged that the law "oblige him to go into court and file his information there . . . and have it determined in the usual way, the same as every other crime is determined." 72 Cong.Rec. 5419. Senator Wheeler likewise could not "conceive how any man" could "possibly object" to an amendment to the proposed legislation that required a customs officer, if he concluded material was obscene, to "tur[n] it over to the district attorney, and the district attorney prosecutes the man, and he has the right of trial by jury in that case." 71 Cong.Rec. 4466. Other Senators similarly indicated their aversion to censorship "by customs clerks and bureaucratic officials," id. at 4437 (remarks of Sen. Page 402 U. S. 371 Dill), preferring that determinations of obscenity should be left to courts and juries. See, e.g., id. at 4433-4439, 4448, 4452-4459; 72 Cong.Rec. 5417-542, 5492, 5497. Senators also expressed the concern later expressed in Freedman that judicial proceedings be commenced and concluded promptly. Speaking in favor of another amendment, Senator Pittman noted that a customs officer seizing obscene matter "should immediately report to the nearest United States district attorney having authority under the law to proceed to confiscate. . . ." Id. at 5420 (emphasis added). Commenting on an early draft of another amendment that was ultimately adopted, Senator Swanson noted that officers would be required to go to court "immediately." Id. at 5422. Then he added:"The minute there is a suspicion on the part of a revenue or customs officer that a certain book is improper to be admitted into this country, he presents the matter to the district court, and there will be a prompt determination of the matter by a decision of that court."Id. at 5424 (emphasis added).Before it finally emerged from Congress, § 1305(a) was amended in response to objections of the sort voiced above: it thus reflects the same policy considerations that induced this Court to hold in Freedman that censors must resort to the courts "within a specified brief period" and that such resort must be followed by "a prompt final judicial decision. . . ." 380 U.S. at 380 U. S. 59. Congress' sole omission was its failure to specify exact time limits within which resort to the courts must be had and judicial proceedings be completed. No one during the congressional debates ever suggested inclusion of such limits, perhaps because experience had not yet demonstrated a need for them. Since 1930, however, the need has become clear. Our researches have disclosed cases sanctioning delays of as long as 40 days and even six Page 402 U. S. 372 months between seizure of obscene goods and commencement of judicial proceedings. See United States v. 77 Cartons of Magazines, 300 F. Supp. 851 (ND Cal.1969); United States v. One Carton Positive Motion Picture Film Entitled "491," 247 F. Supp. 450 (SDNY 1965), rev'd on other grounds, 367 F.2d 889 (CA2 1966). Similarly, we have found cases in which completion of judicial proceedings has taken as long as three, four, and even seven months. See United States v. Ten Erotic Paintings, 311 F. Supp. 884 (Md.1970); United States v. 6 MM Color Motion Picture Film Entitled "Lanuae of Love," 311 F. Supp. 108 (SDNY 1970); United States v. One Carton Positive Motion Picture Film Entitled "491," supra. We conclude that to sanction such delays would be clearly inconsistent with the concern for promptness that was so frequently articulated during the course of the Senate's debates, and that fidelity to Congress' purpose dictates that we read explicit time limits into the section. The only alternative would be to hold § 1305(a) unconstitutional in its entirety, but Congress has explicitly directed that the section not be invalidated in its entirety merely because its application to some persons be adjudged unlawful. See 19 U.S.C. § 1652. Nor does the construction of § 1305(a) to include specific time limits require us to decide issues of policy appropriately left to the Congress or raise other questions upon which Congress possesses special legislative expertise, for Congress has already set its course in favor of promptness and we possess as much expertise as Congress in determining the sole remaining question -- that of the speed with which prosecutorial and judicial institutions can, as a practical matter, be expected to function in adjudicating § 1305(a) matters. We accordingly see no reason for declining to specify the time limits which must be incorporated into § 1305(a) -- a specification that is fully consistent with congressional purpose and that will obviate the constitutional Page 402 U. S. 373 objections raised by claimant. Indeed, we conclude that the legislative history of the section and the policy of giving legislation a saving construction in order to avoid decision of constitutional questions require that we undertake this task of statutory construction.We begin by examining cases in the lower federal courts in which proceedings have been brought under § 1305(a). That examination indicates that, in many of the cases that have come to our attention, the Government, in fact, instituted forfeiture proceedings within 14 days of the date of seizure of the allegedly obscene goods, see United States v. Reliable Sales Co., 376 F.2d 803 (CA4 1967); United States v. 1,000 Copies of a Magazine Entitled "Solis," 254 F. Supp. 595 (Md.1966); United States v. 6 Cartons Containing 19,500 Copies of a Magazine Entitled "Hellenic Sun," 253 F. Supp. 498 (Md.1966), aff'd, 373 F.2d 635 (CA4 1967); United States v. 92 Copies of a Magazine Entitled "Exclusive," 253 F. Supp. 485 (Md.1966); and judicial proceedings were completed within 60 days of their commencement. See United States v. Reliable Sales Co., supra; United States v. 1,000 Copies of a Magazine Entitled "Solis," supra; United States v. 66 Cartons Containing 19,500 Copies of a Magazine Entitled "Hellenic Sun," supra; United States v. 92 Copies of a Magazine Entitled "Exclusive," supra; United States v. 127,29 Copies of Magazines, More or Less, 295 F. Supp. 1186 (Md.1968). Given this record, it seems clear that no undue hardship will be imposed upon the Government and the lower federal courts by requiring that forfeiture proceedings be commenced within 14 days and completed within 60 days of their commencement; nor does a delay of as much as 74 days seem undue for importers engaged in the lengthy process of bringing goods into this country from abroad. Accordingly, we construe § 1305(a) to require intervals of no more Page 402 U. S. 374 than 14 days from seizure of the goods to the institution of judicial proceedings for their forfeiture, and no longer than 60 days from the filing of the action to final decision in the district court. No seizure or forfeiture will be invalidated for delay, however, where the claimant is responsible for extending either administrative action or judicial determination beyond the allowable time limits or where administrative or judicial proceedings are postponed pending the consideration of constitutional issues appropriate only for a three-judge court.Of course, we do not now decide that these are the only constitutionally permissible time limits. We note, furthermore, that constitutionally permissible limits may vary in different contexts; in other contexts, such as a claim by a state censor that a movie is obscene, the Constitution may impose different requirements with respect to the time between the making of the claim and the institution of judicial proceedings or between their commencement and completion than in the context of a claim of obscenity made by customs officials at the border. We decide none of these questions today. We do nothing in this case but construe § 1305(a) in its present form, fully cognizant that Congress may reenact it in a new form specifying new time limits, upon whose constitutionality we may then be required to pass.So construed, § 1305(a) may constitutionally be applied to the case before us. Seizure in the present case took place on October 24 and forfeiture proceedings were instituted on November 6 -- a mere 13 days after seizure. Moreover, decision on the obscenity of Luros' materials might well have been forthcoming within 60 days had claimant not challenged the validity of the statute and caused a three-judge court to be convened. We hold that proceedings of such brevity fully meet the constitutional standards set out in Freedman, Teitel, and Page 402 U. S. 375 Blount. Section 1305(a) accordingly may be applied to the 37 photographs, providing that, on remand, the obscenity issue is resolved in the District Court within 60 days, excluding any delays caused by Luros.IIWe next consider Luros' second claim, which is based upon Stanley v. Georgia, supra. On the authority of Stanley, Luros urged the trial court to construe the First Amendment as forbidding any restraints on obscenity except where necessary to protect children or where it intruded itself upon the sensitivity or privacy of an unwilling adult. Without rejecting this position, the trial court read Stanley as protecting, at the very least, the right to read obscene material in the privacy of one's own home, and to receive it for that purpose. It therefore held that § 1305(a), which bars the importation of obscenity for private use as well as for commercial distribution, is overbroad, and hence unconstitutional. [Footnote 3] Page 402 U. S. 376The trial court erred in reading Stanley as immunizing from seizure obscene materials possessed at a port of entry for the purpose of importation for private use. In United States v. Reidel, ante, p. 402 U. S. 351, we have today held that Congress may constitutionally prevent the mails from being used for distributing pornography. In this case, neither Luros nor his putative buyers have rights that are infringed by the exclusion of obscenity from incoming foreign commerce. By the same token, obscene materials may be removed from the channels of commerce when discovered in the luggage of a returning foreign traveler even though intended solely for his private use. That the private user under Stanley may not be prosecuted for possession of obscenity in his home does not mean that he is entitled to import it from abroad free from the power of Congress to exclude noxious articles from commerce. Stanley's emphasis was on the freedom of thought and mind in the privacy of the home. But a port of entry is not a traveler's home. His right to be let alone neither prevents the search of his luggage nor the seizure of unprotected, but illegal, materials when his possession of them is discovered during such a search. Customs officers characteristically inspect luggage, and their power to do so is not questioned in this case; it is an old practice, and is intimately associated with excluding illegal articles from the country. Whatever the scope of the right to receive obscenity adumbrated in Stanley, that right, as we said in Reidel, does not extend to one who is seeking, as was Luros here, to distribute obscene materials to the public, nor does it extend to one seeking to import obscene materials from abroad, whether for private use or public distribution. As we held in Roth v. United States, 354 U. S. 476 (1957), and reiterated today in Reidel, supra, obscenity is not within the scope of First Amendment protection. Hence, Congress may Page 402 U. S. 377 declare it contraband and prohibit its importation, as it has elected in § 1305(a) to do.The judgment of the District Court is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtUnited States v. Thirty-Seven Photographs, 402 U.S. 363 (1971)United States v. Thirty-Seven (37) Photographs (Luros, Claimant)No. 133Argued January 20, 1971Decided May 3, 1971402 U.S. 363SyllabusCustoms agents seized as obscene photographs possessed by claimant Luros when he returned to this country from Europe on October 24, 1969. Section 1305(a) of 19 U.S.C. pursuant to which the agents acted, prohibits the importation of obscene material, provides for its seizure at any customs office and retention pending the judgment of the district court, and specifies that the collector of customs give information of the seizure to the district attorney, who shall institute forfeiture proceedings. The agents referred the matter to the United States Attorney, who brought forfeiture proceedings on November 6. Luros' answer denied that the photographs were obscene and counterclaimed that § 1305(a) was unconstitutional. He asked for a three-judge court, which, on November 20, was ordered to be convened. Following a hearing on January 9, 1970, the court on January 27 held § 1305(a) unconstitutional on the grounds that the statute (1) failed to meet the procedural requirements of Freedman v. Maryland, 380 U. S. 51, and (2) was overly broad as including within its ban obscene material for private use, making it invalid under Stanley v. Georgia, 394 U. S. 557.Held: The judgment is reversed and the case remanded. Pp. 402 U. S. 367-379.309 F. Supp. 36, reversed and remanded.MR. JUSTICE WHITE, joined by THE CHIEF JUSTICE, MR. JUSTICE HARLAN, MR. JUSTICE BRENNAN, MR. JUSTICE STEWART, and MR. JUSTICE BLACKMUN, concluded in Part I that § 1305(a) can be construed as requiring administrative and judicial action within specified time limits that will avoid the constitutional issue that would otherwise be presented by Freedman, supra. Pp. 402 U. S. 367-375.(a) In Freedman, unlike the situation here, the statute failing to specify time limits was enacted pursuant to state authority, and could not be given an authoritative construction by this Court to avoid the constitutional issue. P. 402 U. S. 369.(b) The reading into § 1305(a) of the time limits required by Freedman comports with the legislative purpose of the statute Page 402 U. S. 364 and furthers the policy of statutory construction to avoid a constitutional issue. Pp. 37373.(c) Section 1305(a) may be constitutionally applied as construed to require intervals of no longer than 14 days from seizure of the goods to the institution of judicial proceedings for their forfeiture and no longer than 60 days from the filing of the action to final decision in the district court (absent claimant-induced delays). Pp. 402 U. S. 373-374.MR. JUSTICE WHITE, joined by THE CHIEF JUSTICE, MR. JUSTICE BRENNAN, and MR. JUSTICE BLACKMUN, concluded in Part II that Congress' constitutional power to remove obscene materials from the channels of commerce is unimpaired by this Court's decision in Stanley, supra. Cf. United States v. Reidel, ante, p. 402 U. S. 351. Pp. 402 U. S. 375-377.MR. JUSTICE HARLAN concluded that Luros, who stipulated with the Government that the materials were imported for commercial purposes, lacked standing to challenge the statute for overbreadth on the ground that it applied to importation for private use. P. 402 U. S. 378.MR. JUSTICE STEWART while agreeing that the First Amendment does not prevent the border seizure of obscene materials imported for commercial dissemination and that Freedman v. Maryland, 380 U. S. 51, imposes time limits for initiating forfeiture proceedings and completing the judicial obscenity determination, would not even intimate that the Government may lawfully seize literature intended for the importer's purely private use. P. 402 U. S. 378.WHITE, J., announced the Court's judgment and delivered an opinion in which (as to Part I) BURGER, C.J., and HARLAN, BRENNAN, STEWART, and BLACKMUN, JJ., joined, and in which (as to Part II), BURGER, C.J., and BRENNAN and BLACKMUN, JJ., joined. HARLAN, J., post, p. 402 U. S. 377, and STEWART, J., post, p. 402 U. S. 378, filed opinions concurring in the judgment and concurring in Part I of WHITE, J.'s opinion. BLACK, J., filed a dissenting opinion, in which DOUGLAS, J., joined, post, p. 402 U. S. 379. MARSHALL, J., filed a dissenting opinion, ante, p. 402 U. S. 360. Page 402 U. S. 365

1992_91-1135

548 NEWARK MORNING LEDGER CO. v. UNITED STATESKent L. Jones, Robert S. Pomerance, Francis M. Allegra, and Steven W Parks. *JUSTICE BLACKMUN delivered the OpInIOn of the Court. This case presents the issue whether, under § 167 of the Internal Revenue Code, 26 U. S. C. § 167, the Internal Revenue Service (IRS) may treat as nondepreciable an intangible asset proved to have an ascertainable value and a limited useful life, the duration of which can be ascertained with reasonable accuracy, solely because the IRS considers the asset to be goodwill as a matter of law.1*Briefs of amici curiae urging reversal were filed for Black & Decker Corp. et al. by Mark I. Levy, Arthur I. Gould, Roger J. Jones, and Andrew L. Frey; for Charles Schwab Corp. by Glenn A. Smith, Robert C. Alexander, and Teresa A. Maloney; for Donrey, Inc., by Lester G. Fant III, Daniel M. Davidson, Rex E. Lee, and Carter G. Phillips; for the Independent Insurance Agents of America et al. by Kenneth J. Kies; for Magazine Publishers of America, Inc., by James L. Malone III and George W Benson; for the New England Fuel Institute et al. by Gary J. Klein, Bernhardt K. Wruble, and John S. Moot; for the Tax Executives Institute, Inc., by Timothy J. McCormally and Mary L. Fahey; and for Worrell Enterprises, Inc., by Malcolm L. Stein and Stanley E. Preiser.Briefs of amici curiae were filed for the American Bankers Association by John J. Gill III, Michael F. Crotty, Joanne Ames, Philip C. Cook, Terence J. Greene, and Timothy J. Peaden; for the American Business Press by Robert A. Saltzstein, Stephen M. Feldman, and David R. Straus; for Colorado National Bankshares, Inc., et al. by James E. Bye and Richard G. Wilkins; for Coopers & Lybrand by David L. McLean; for the Investment Counsel Association of America, Inc., by Kenneth W Gideon; for the Newspaper Association of America by George L. Middleton, Jr., and Corrine M. Yu; for Philip Morris Companies Inc. by Jerome B. Libin and Padric K. J. O'Brien; and for Frederic W Hickman et al., pro se.1 Section 167 states: "(a) General rule"There shall be allowed as a depreciation deduction a reasonable allowance for the exhaustion, wear and tear (including a reasonable allowance for obsolescence)-"(1) of property used in the trade or business, or549IPetitioner Newark Morning Ledger Co., a New Jersey corporation, is a newspaper publisher. It is the successor to The Herald Company with which it merged in 1987. Eleven years earlier, in 1976, Herald had purchased substantially all the outstanding shares of Booth Newspapers, Inc., the publisher of daily and Sunday newspapers in eight Michigan communities.2 Herald and Booth merged on May 31, 1977, and Herald continued to publish the eight papers under their old names. Tax code provisions in effect in 1977 required that Herald allocate its adjusted income tax basis in the Booth shares among the assets acquired in proportion to their respective fair market values at the time of the merger. See 26 U. S. C. §§ 332 and 334(b)(2) (1976 ed.).3Prior to the merger, Herald's adjusted basis in the Booth shares was approximately $328 million. Herald allocated $234 million of this to various financial assets (cash, securities, accounts and notes receivable, the shares of its wholly owned subsidiary that published Parade Magazine, etc.) and tangible assets (land, buildings, inventories, production"(2) of property held for the production of income."Treasury Regulations § 1.167(a)-(3) interprets § 167(a) and states:"If an intangible asset is known from experience or other factors to be of use in the business or in the production of income for only a limited period, the length of which can be estimated with reasonable accuracy, such an intangible asset may be the subject of a depreciation allowance. Examples are patents and copyrights. An intangible asset, the useful life of which is not limited, is not subject to the allowance for depreciation. No allowance will be permitted merely because, in the unsupported opinion of the taxpayer, the intangible asset has a limited useful life. No deduction for depreciation is allowable with respect to goodwill." 26 CFR § 1.167(a)-3 (1992).2The eight Michigan papers were The Ann Arbor News, The Bay City Times, The Flint Journal, The Grand Rapids Press, The Jackson Citizen Patriot, Kalamazoo Gazette, The Muskegon Chronicle, and The Saginaw News.3 Section 334(b)(2) was repealed in 1982 and replaced by the somewhat different provisions of the present § 338 of the Code.550550 NEWARK MORNING LEDGER CO. v. UNITED STATESequipment, computer hardware, etc.). Herald also allocated $67.8 million to an intangible asset denominated "paid subscribers."4 This consisted of 460,000 identified subscribers to the eight Booth newspapers as of May 31, 1977, the date of merger. These subscribers were customers each of whom had requested that the paper be delivered regularly to a specified address in return for payment of the subscription price. The $67.8 million figure was petitioner's estimate of future profits to be derived from these at-will subscribers, all or most of whom were expected to continue to subscribe after the Herald acquisition. The number of "paid subscribers" was apparently an important factor in Herald's decision to purchase Booth and in its determination of the appropriate purchase price for the Booth shares. See Brief for Petitioner 4-5. After these allocations, the approximately $26.2 million remaining was allocated to going-concern value and goodwill.On its federal income tax returns for the calendar years 1977-1980, inclusive, Herald claimed depreciation deductions on a straight-line basis for the $67.8 million allocated to "paid subscribers." The IRS disallowed these deductions on the ground that the concept of "paid subscribers" was indistinguishable from goodwill and, therefore, was nondepreciable under the applicable regulations. Herald paid the resulting additional taxes. After the 1987 merger, petitioner filed timely claims for refund. The IRS took no action on the claims, and, upon the expiration of the prescribed 6-month period, see 26 U. S. C. § 6532(a)(1), petitioner brought suit in4 According to petitioner, the term" 'paid subscribers' is intended to reflect the fact that the customers in question paid for their newspapers, rather than receiving them for free, and that they subscribed to the newspaper, requesting regular delivery, rather than purchasing it on a single copy basis." Brief for Petitioner 4, n. 5. The term does not connote subscription payments in advance; indeed, the customer relationship was terminable at will.551the District of New Jersey to recover taxes and interest that it claimed had been assessed and collected erroneously.The case was tried to the court. Petitioner presented financial and statistical experts who testified that, using generally accepted statistical techniques, they were able to estimate how long the average at-will subscriber of each Booth newspaper as of May 31, 1977, would continue to subscribe. The estimates ranged from 14.7 years for a daily subscriber to The Ann Arbor News to 23.4 years for a subscriber to the Sunday edition of The Bay City Times. This was so despite the fact that the total number of subscribers remained almost constant during the tax years in question. The experts based their estimates on actuarial factors such as death, relocation, changing tastes, and competition from other media. The experts also testified that the value of "paid subscribers" was appropriately calculated using the "income approach." Under this, petitioner's experts first calculated the present value of the gross-revenue stream that would be generated by these subscriptions over their estimated useful lives. From that amount they subtracted projected costs of collecting the subscription revenue. Petitioner contended that the resulting estimated net-revenue stream-calculated as $67,773,000 by one of its experts-was a reasonable estimate of the value of "paid subscribers."The Government did not contest petitioner's expert evidence at all. In fact, it stipulated to the estimates of the useful life of "paid subscribers" for each newspaper. Also, on valuation, the Government presented little or no evidence challenging petitioner's calculations. Instead, it argued that the only value attributable to the asset in question was the cost of generating 460,000 new subscribers through a subscription drive. Under this "cost approach," the Government estimated the value of the asset to be approximately $3 million.The Government's principal argument throughout the litigation has been that "paid subscribers" represents an asset552552 NEWARK MORNING LEDGER CO. v. UNITED STATESindistinguishable from the goodwill of the Booth newspapers. According to the Government, the future stream of revenue expected to be generated by the 460,000 "paid subscribers" represented the very essence of the goodwill value of the newspapers. It argued that because goodwill is nondepreciable, the value of "paid subscribers" cannot be depreciated but must be added to basis so that, when the business is disposed of, the cost of the asset will be deducted from the proceeds in computing capital gain or loss.The District Court (Judge H. Lee Sarokin) ruled in petitioner's favor. 734 F. Supp. 176 (NJ 1990). It found as a fact that the "paid subscribers" asset was not selfregenerating-it had a limited useful life the duration of which could be calculated with reasonable accuracy. Id., at 180. The court further found that the value of "paid subscribers" was properly calculated using the "income approach" and that the asset itself was separate and distinct from goodwill. "[O]ne must distinguish between a galaxy of customers who mayor may not return, whose frequency is unknown, and whose quantity and future purchases cannot be predicted, against subscribers who can be predicted to purchase the same item, for the same price on a daily basis." Id., at 176-177.The Court of Appeals for the Third Circuit reversed. 945 F.2d 555 (1991). It concluded that the District Court had erred in defining goodwill as that which remains after all assets with determinable useful lives and ascertainable values have been accounted for. Id., at 568. The court concluded that goodwill has a substantive meaning-the expectancy that "'old customers will resort to the old place' of business," id., at 567-and that "paid subscribers" is the essence of goodwill. Even though the "paid subscribers" asset may have a limited useful life that can be ascertained with reasonable accuracy, the court held that its value is not separate and distinct from goodwill. Id., at 568.The Court of Appeals denied petitioner's suggestion for rehearing in banc, with two judges dissenting. See App. to553Pet. for Cert. 52a. In order to resolve an issue of substantial importance under the Internal Revenue Code and to settle a perceived conflict,5 we granted certiorari, 503 U. S. 970 (1992).IISection 167(a) of the Code allows as a deduction for depreciation a reasonable allowance for the exhaustion and wear and tear, including obsolescence, of property used in a trade or business or of property held for the production of income. See n. 1, supra. This Court has held that "the primary purpose" of an annual depreciation deduction is "to further the integrity of periodic income statements by making a meaningful allocation of the cost entailed in the use (excluding maintenance expense) of the asset to the periods to which it contributes." Massey Motors, Inc. v. United States, 364 U. S. 92, 104 (1960). The depreciation deduction has been a part of the federal tax system at least since 1909, when Congress recognized that a corporation should calculate its annual net income by deducting from gross income "all losses actually sustained within the year and not compensated by insurance or otherwise, including a reasonable allowance for depreciation of property, if any." Tariff of 1909, § 38 Second, 36 Stat. 113. Nothing in the text of the 1909 statute or in the implementing Treasury Decision precluded a depreciation allowance for intangible property.6 This changed in5 Compare the Third Circuit's ruling in the present case with Donrey, Inc. v. United States, 809 F.2d 534 (CA8 1987). See also Citizens & Southern Corp. v. Commissioner, 91 T. C. 463 (1988), aff'd, 919 F.2d 1492 (CAll 1990).6 According to the Treasury Department, the depreciation deduction "should be the estimated amount of the loss, accrued during the year to which the return relates, in the value of the property in respect of which such deduction is claimed that arises from exhaustion, wear and tear, or obsolescence out of the uses to which the property is put .... This estimate should be formed upon the assumed life of the property, its cost value, and its use." Treas. Regs. 31, Art. 4, p. 11 (1909).554554 NEWARK MORNING LEDGER CO. v. UNITED STATES1914 with the promulgation of Treas. Regs. 33 (1914) issued under the 1913 Income Tax Law.7The Revenue Act of 1918, § 234(a)(7), authorized a "reasonable allowance for the exhaustion, wear and tear of property used in the trade or business, including a reasonable allowance for obsolescence." 40 Stat. 1078 (1919). Treasury Regs. 45 (1919), promulgated under the 1918 Act, explicitly recognized that intangible assets "may be the subject of a depreciation allowance." Art. 163. Thereafter, the regulations governing the depreciation of intangible assets have remained essentially unchanged. The current version is set forth in n. 1, supra.Since 1927, the IRS consistently has taken the position that "goodwill" is nondepreciable.8 One court has said specifically: "Indeed, this proposition is so well settled that the only question litigated in recent years regarding this area of the law is whether a particular asset is 'goodwill.'" Hous-7 Treasury Regs. 33 provided explicitly that the depreciation deduction should be "estimated on the cost of the physical property with respect to which such deduction is claimed, which loss results from wear and tear due to the use to which the property is put" (emphasis added). Art. 159. Furthermore, "[aJssets of any character whatever which are not affected by use, wear and tear (except patents, copyrights, etc.) are not subject to the depreciation allowance authorized by this act." Art. 162.8Between 1919 and 1927, the IRS recognized that the goodwill of distillers and dealers might be depreciable as a result of the passage of the Eighteenth Amendment prohibiting the manufacture, sale, or transportation of intoxicating liquors. See T. B. R. 44, 1 Cum. Bull. 133 (1919). But in 1926, the Eighth Circuit, in Red Wing Malting Co. v. Willcuts, 15 F.2d 626, cert. denied, 273 U. S. 763 (1927), ruled that, under the plain language of the Revenue Act of 1918, goodwill could not be depreciated, for the depreciation provision "limits the allowance for obsolescence to such property as is susceptible to exhaustion, wear, and tear by use in the business, and good will is not such property." 15 F. 2d, at 633. Following Red Wing Malting, the Treasury Department amended its regulations to provide: "No deduction for depreciation, including obsolescence, is allowable in respect of good wilL" T. D. 4055, VI-2 Cum. Bull. 63 (1927). That has been the position of the IRS ever since.555ton Chronicle Publishing Co. v. United States, 481 F.2d 1240, 1247 (CA5 1973), cert. denied, 414 U. S. 1129 (1974).III A"Goodwill" is not defined in the Code or in any Treasury Department Regulations. There have been attempts, however, to devise workable definitions of the term. In Metropolitan Bank v. St. Louis Dispatch Co., 149 U. S. 436 (1893), for example, this Court considered whether a newspaper's goodwill survived after it was purchased and ceased publishing under its old name. It ruled that the goodwill did not survive, relying on Justice Story's notable description of "goodwill" as"'the advantage or benefit, which is acquired by an establishment, beyond the mere value of the capital, stock, funds, or property employed therein, in consequence of the general public patronage and encouragement which it receives from constant or habitual customers, on account of its local position, or common celebrity, or reputation for skill or affluence, or punctuality, or from other accidental circumstances or necessity, or even from ancient partialities or prejudices.''' Id., at 446, quoting J. Story, Partnerships § 99 (1841).In Des Moines Gas Co. v. Des Moines, 238 U. S. 153 (1915), the Court described goodwill as "that element of value which inheres in the fixed and favorable consideration of customers, arising from an established and well-known and wellconducted business." Id., at 165. See also Los Angeles Gas & Electric Corp. v. Railroad Comm'n of California, 289 U. S. 287, 313 (1933) (distinguishing "going concern" from "good will" when fixing rates for public utilities).Although the definition of goodwill has taken different forms over the years, the shorthand description of goodwill as "the expectancy of continued patronage," Boe v. Commis-556556 NEWARK MORNING LEDGER CO. v. UNITED STATESsioner, 307 F.2d 339,343 (CA9 1962), provides a useful label with which to identify the total of all the imponderable qualities that attract customers to the business. See Houston Chronicle Publishing Co. v. United States, 481 F. 2d, at 1248, n. 5. This definition, however, is of little assistance to a taxpayer trying to evaluate which of its intangible assets is subject to a depreciation allowance. The value of every intangible asset is related, to a greater or lesser degree, to the expectation that customers will continue their patronage.9 But since 1918, at least some intangible assets have been depreciable. Because intangible assets do not exhaust or waste away in the same manner as tangible assets, taxpayers must establish that public taste or other socioeconomic forces will cause the intangible asset to be retired from service, and they must estimate a reasonable date by which this event will occur. See B. Bittker & M. McMahon, Federal Income Taxation of Individuals n2.4, p. 12-10 (1988). Intangibles such as patents and copyrights are depreciable over their "legal lives," which are specified by statute. Covenants not to compete, leaseholds, and life estates, for example, are depreciable over their useful lives that are expressly limited by contract.9We emphasize that while the "expectancy of continued patronage" is a serviceable description of what we generally mean when we describe an intangible asset that has no useful life and no ascertainable value, this shibboleth tells us nothing about whether the asset in question is depreciable. The dissent concedes that "the law concerning the depreciation of intangible assets related to goodwill has developed on a case-by-case basis," post, at 576, n. 4, yet, inexplicably, it suggests that "[s]uch matters are not at issue in this case, however, because the asset that Ledger seeks to depreciate is indistinguishable from goodwill," ibid. As we demonstrate below, an intangible asset with an ascertainable value and a limited useful life, the duration of which can be ascertained with reasonable accuracy, is depreciable under § 167 of the Code. The fact that it may also be described as the "expectancy of continued patronage" is entirely beside the point.557The category of intangibles that has given the IRS and the courts difficulty is that group of assets sometimes denominated "customer-based intangibles." This group includes customer lists, insurance expirations, subscriber lists, bank deposits, cleaning-service accounts, drugstore-prescription files, and any other identifiable asset the value of which obviously depends on the continued and voluntary patronage of customers. The question has been whether these intangibles can be depreciated notwithstanding their relationship to "the expectancy of continued patronage."BWhen considering whether a particular customer-based intangible asset may be depreciated, courts often have turned to a "mass asset" or "indivisible asset" rule. The rule provides that certain kinds of intangible assets are properly grouped and considered as a single entity; even though the individual components of the asset may expire or terminate over time, they are replaced by new components, thereby causing only minimal fluctuations and no measurable loss in the value of the whole. The following is the usually accepted description of a mass asset:"[A] purchased terminable-at-will type of customer list is an indivisible business property with an indefinite, nondepreciable life, indistinguishable from-and the principal element of-goodwill, whose ultimate value lies in the expectancy of continued patronage through public acceptance. It is subject to temporary attrition as well as expansion through departure of some customers, acquisition of others, and increase or decrease in the requirements of individual customers. A normal turnover of customers represents merely the ebb and flow of a continuing property status in this species, and does not within ordinary limits give rise to the right to deduct for tax purposes the loss of individual customers. The whole is equal to the sum of its fluctuating parts at any558558 NEWARK MORNING LEDGER CO. v. UNITED STATESgiven time, but each individual part enjoys no separate capital standing independent of the whole, for its disappearance affects but does not interrupt or destroy the continued existence of the whole." Golden State Towel & Linen Service, Ltd. v. United States, 179 Ct. Cl. 300, 310, 373 F.2d 938, 944 (1967).The mass-asset rule prohibits the depreciation of certain customer-based intangibles because they constitute selfregenerating assets that may change but never waste. Although there may have been some doubt prior to 1973 as to whether the mass-asset rule required that any asset related to the expectancy of continued patronage always be treated as nondepreciable goodwill as a matter of law, that doubt was put to rest by the Fifth Circuit in the Houston Chronicle case. The court there considered whether subscription lists, acquired as part of the taxpayer's purchase of The Houston Press, were depreciable. The taxpayer had no intention of continuing publication of the purchased paper, so there was no question of the lists' being self-regenerating; they had value only to the extent that they furnished names and addresses of prospective subscribers to the taxpayer's newspaper. After reviewing the history of the mass-asset rule, the court concluded that there was no per se rule that an intangible asset is nondepreciable whenever it is related to goodwill. On the contrary, the rule does not prevent taking a depreciation allowance "if the taxpayer properly carries his dual burden of proving that the intangible asset involved (1) has an ascertainable value separate and distinct from goodwill, and (2) has a limited useful life, the duration of which can be ascertained with reasonable accuracy." Houston Chronicle, 481 F. 2d, at 1250.Following the decision in Houston Chronicle, the IRS issued a new ruling, modifying prior rulings "to remove any implication that customer and subscription lists, location contracts, insurance expirations, etc., are, as a matter of law, indistinguishable from goodwill possessing no determinable559useful life." Rev. Rul. 74-456, 1974-2 Cum. Bull. 65, 66. The IRS continued to claim that customer-based intangibles generally are in the nature of goodwill, representing "the customer structure of a business, their value lasting until an indeterminate time in the future." Nonetheless, it acknowledged that, "in an unusual case," the taxpayer may prove that the "asset or a portion thereof does not possess the characteristics of goodwill, is susceptible of valuation, and is of use to the taxpayer in its trade or business for only a limited period of time." Ibid. Under these circumstances, the IRS recognized the possibility that the customer-based intangible asset could be depreciated over its useful life.Despite the suggestion by the Court of Appeals in this case that the mass-asset rule is "now outdated," 945 F. 2d, at 561, it continues to guide the decisions of the Tax Court with respect to certain intangible assets. In Ithaca Industries, Inc. v. Commissioner, 97 T. C. 253 (1991), for example, the Tax Court recently considered whether a taxpayer could depreciate the value allocated to the trained work force of a purchased going concern over the length of time each employee remained with the purchasing company. The court acknowledged that "whether the assembled work force is an intangible asset with an ascertainable value and a limited useful life separate from goodwill or going-concern value is a question of fact." Id., at 263-264. After reviewing the record, it concluded that the mass-asset rule applied to prohibit the depreciation of the cost of acquiring the assembled work force:"Although the assembled work force is used to produce income, this record fails to show that its value diminishes as a result of the passing of time or through use. As an employee terminated his or her employment, another would be hired and trained to take his or her place. While the assembled work force might be subject to temporary attrition as well as expansion through departure of some employees and the hiring of others, it560560 NEWARK MORNING LEDGER CO. v. UNITED STATESwould not be depleted due to the passage of time or as a result of use. The turnover rate of employees represents merely the ebb and flow of a continuing work force. An employee's leaving does not interrupt or destroy the continued existence of the whole." Id., at 267.As a factual matter, the Tax Court found that the taxpayer hired a new worker only so it could replace a worker "who resigned, retired, or was fired." Id., at 268. The court found that the "assembled work force" was a nondiminishing asset; new employees were trained in order to keep the "assembled work force" unchanged, and the cost of the training was a deductible expense. Id., at 271.IVSince 1973, when Houston Chronicle clarified that the availability of the depreciation allowance was primarily a question of fact, taxpayers have sought to depreciate a wide variety of customer-based intangibles. The courts that have found these assets depreciable have based their conclusions on carefully developed factual records. In Richard S. Miller & Sons, Inc. v. United States, 210 Ct. Cl. 431, 537 F.2d 446 (1976), for example, the court considered whether a taxpayer was entitled to a depreciation deduction for 1,383 insurance expirations that it had purchased from another insurer. 10 The court concluded that the taxpayer had carried its heavy burden of proving that the expirations had an ascertainable value separate and distinct from goodwill and had a limited useful life, the duration of which could be ascertained with reasonable accuracy. The court acknowledged10 An "expiration" is a copy of the face of an insurance policy made when the policy is issued. It shows the name of the insured, the type of insurance, the premium, the covered property, and the expiration date. "Its principal value in the insurance business is its indication of the most advantageous time to solicit a renewal." Richard S. Miller & Sons, Inc. v. United States, 210 Ct. Cl., at 436, 537 F. 2d, at 450.561that the insurance expirations constituted a "mass asset" the useful life of which had to be "determined from facts relative to the whole, and not from experience with any particular policy or account involved." Id., at 443, 537 F. 2d, at 454. The court also noted, however, that the mass-asset rule does not prevent a depreciation deduction "where the expirations as a single asset can be valued separately and the requisite showing made that the useful life of the information contained in the intangible asset as a whole is of limited duration." Id., at 439, 537 F. 2d, at 452. All the policies were scheduled to expire within three years, but their continuing value lay in their being renewable. Based on statistics gathered over a 5-year period, the taxpayer was able to estimate that the mass asset had a useful life of not more than 10 years from the date of purchase. Any renewals after that time would be attributable to the skill, integrity, and reputation of the taxpayer rather than to the value of the original expirations. "The package of expirations demonstrably was a wasting asset." Id., at 444, 537 F. 2d, at 455. The court ruled that the taxpayer could depreciate the cost of the collection of insurance expirations over the useful life of the mass asset.In Citizens & Southern Corp. v. Commissioner, 91 T. C. 463 (1988), aff'd, 919 F.2d 1492 (CAll 1990), the taxpayer argued that it was entitled to depreciate the bank-deposit base acquired in the purchase of nine separate banks.11 The taxpayer sought to depreciate the present value of the income it expected to derive from the use of the balances of deposit accounts existing at the time of the bank purchases.11 The term "deposit base" describes "the intangible asset that arises in a purchase transaction representing the present value of the future stream of income to be derived from employing the purchased core deposits of a bank." Citizens & Southern Corp. v. Commissioner, 91 T. C., at 465. The value of the deposit base rests upon the "ascertainable probability that inertia will cause depositors to leave their funds on deposit for predictable periods of time." Id., at 500.562562 NEWARK MORNING LEDGER CO. v. UNITED STATESThe Commissioner argued that the value of the core deposits was inextricably related to the value of the overall customer relationship, that is, to goodwill. The Commissioner also argued that the deposit base consisted of purchased, terminable-at-will customer relationships that are equivalent to goodwill as a matter of law. The Tax Court rejected the Commissioner's position, concluding that the taxpayer had demonstrated with sufficient evidence that the economic value attributable to the opportunity to invest the core deposits could be (and, indeed, was) valued and that the fact that new accounts were opened as old accounts closed did not make the original purchased deposit base selfregenerating. 91 T. C., at 499.The court also concluded that, based on "lifing studies" estimating the percentage of accounts that would close over a given period of time, the taxpayer established that the deposit base had a limited useful life, the duration of which could be ascertained with reasonable accuracy. The taxpayer had established the value of the intangible asset using the cost-savings method, entitling it to depreciate that portion of the purchase price attributable to the present value of the difference between the ongoing costs associated with maintaining the core deposits and the cost of the market alternative for funding its loans and other investments. Id., at 510.The Tax Court reached the same result in Colorado National Bankshares, Inc. v. Commissioner, 60 TCM 771 (1990), , 90,495 P-H Memo TC, aff'd, 984 F.2d 383 (CAlO 1993). The Tax Court concluded that"the value of the deposit base does not depend upon a vague hope that customers will patronize the bank for some unspecified length of time in the future. The value of the deposit base rests upon the ascertainable probability that inertia will cause depositors to leave their funds on deposit for predictable periods of time."563Colorado National Bankshares, 60 TCM, at 789, , 90,495 P-H Memo TC, at 2,396.The court specifically found that the deposit accounts could be identified; that they had limited lives that could be estimated with reasonable accuracy; and that they could be valued with a fair degree of accuracy. They were also not self-regenerating. "It is these characteristics which separate them from general goodwill and permits separate valuation." Ibid. See also IT&S of Iowa, Inc. v. Commissioner, 97 T. C. 496, 509 (1991); Northern Natural Gas Co. v. O'Malley, 277 F.2d 128, 139 (CA8 1960) (concurring opinion).The Eighth Circuit has considered a factual situation nearly identical to the case now before us. In Donrey, Inc. v. United States, 809 F.2d 534 (1987), the taxpayer sought to depreciate the subscription list of a newspaper it had purchased as a going concern. The taxpayer asserted that the subscription list was not simply a list of customers but "a machine to generate advertising revenue." Id., at 536. There was expert testimony that the value of the subscription list was "the present value of the difference in advertising revenues generated by the subscription list as compared to the revenues of an equivalent paper without a subscription list." Ibid. A jury found that the list had a limited useful life, the duration of which could be ascertained with reasonable accuracy; that the useful life was 23 years; and that it had an ascertainable value of $559,406 separate and distinct from goodwill. The District Court denied a motion for judgment notwithstanding the verdict after concluding that, although reasonable minds could have differed as to the correct result, there was evidence from which the jury could properly find for the taxpayer. The Court of Appeals implicitly rejected the Government's argument that the subscription list was necessarily inseparable from the value of goodwill when it deferred to the jury's finding that the subscription list was depreciable because it had a determinable useful life and an ascertainable value.564564 NEWARK MORNING LEDGER CO. v. UNITED STATESV AAlthough acknowledging the "analytic force" of cases such as those discussed above, the Court of Appeals in the present case characterized them as "no more than a minority strand amid the phalanx of cases" that have adopted the Government's position on the meaning of goodwill. 945 F. 2d, at 565.12 "In any case, consistent with the prevailing case law, we believe that the [IRS] is correct in asserting that, for tax purposes, there are some intangible assets which, notwithstanding that they have wasting lives that can be estimated with reasonable accuracy and ascertainable values, are nonetheless goodwill and nondepreciable." Id., at 568. The Court of Appeals concluded further that in "the context of the sale of a going concern, it is simply often too difficult for the taxpayer and the court to separate the value of the list qua list from the goodwill value of the customer relationships/structure." Ibid. We agree with that general observation. It is often too difficult for taxpayers to separate depreciable intangible assets from goodwill. But sometimes they manage to do it. And whether or not they have been successful in any particular case is a question of fact.The Government concedes: "The premise of the regulatory prohibition against the depreciation of goodwill is that, like stock in a corporation, a work of art, or raw land, good-12 At least one commentator has taken issue with the Court of Appeals' characterization of the recent cases as nothing but a "minority strand." See Avi-Yonah, Newark Morning Ledger: A Threat to the Amortizability of Acquired Intangibles, 55 Tax Notes 981, 984 (1992) (of the 14 cases cited by the Third Circuit that were decided after Houston Chronicle in 1973, the IRS has prevailed in only 6 of them; "hardly an 'overwhelming weight of authority' in the IRS' favor, especially given that two of the IRS victories, but none of the taxpayers,' were only at the district court level"). Regardless of whether the cases discussed in Part IV, supra, are characterized as a "minority strand" or as a "modern trend," we find their reasoning and approach persuasive.565will has no determinate useful life of specific duration." Brief for United States 13. See also Richard S. Miller & Sons, Inc. v. United States, 210 Ct. Cl., at 437, 537 F. 2d, at 450 ("Goodwill is a concept that embraces many intangible elements and is presumed to have a useful life of indefinite duration"). The entire justification for refusing to permit the depreciation of goodwill evaporates, however, when the taxpayer demonstrates that the asset in question wastes over an ascertainable period of time. It is more faithful to the purposes of the Code to allow the depreciation deduction under these circumstances, for "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," INDOPCO, Inc. v. Commissioner, 503 U. S. 79, 84 (1992).13In the case that first established the principle that goodwill was not depreciable, the Eighth Circuit recognized that the reason for treating goodwill differently was simple and direct: "'As good will does not suffer wear and tear, does not become obsolescent, is not used up in the operation of the business, depreciation, as such, cannot be charged against it.''' Red Wing Malting Co. v. Willcuts, 15 F.2d 626, 633 (1926), cert. denied, 273 U. S. 763 (1927). See also 5 J. Mer-13 The dissent suggests that we are usurping the proper role of Congress by seeking to "modify the per se ban on depreciating goodwill," post, at 582, n. 10. But we are doing nothing of the kind. We simply have determined that, in light of the factual record in this case, the "paid subscribers" asset is depreciable. The dissent's mistake is to assume that because the "paid subscribers" asset looks and smells like the "expectancy of continued patronage," it is, ipso facto, nondepreciable. In our view, however, whether or not an asset is depreciable is not a question to be settled by definition. "Goodwill" remains nondepreciable under applicable regulations, and we do not purport to change that fact. In interpreting those regulations, however, we have concluded that because the "paid subscribers" is an asset found to have a limited useful life and an ascertainable value which may be determined with reasonable accuracy, it is depreciable. By definition, therefore, it is not "goodwill."566566 NEWARK MORNING LEDGER CO. v. UNITED STATEStens, Law of Federal Income Taxation § 23A.01, p. 7 (1990) ("Goodwill is not amortizable intangible property because its useful life cannot be ascertained with reasonable accuracy" (emphasis added)). It must follow that if a taxpayer can prove with reasonable accuracy that an asset used in the trade or business or held for the production of income has a value that wastes over an ascertainable period of time, that asset is depreciable under § 167, regardless of the fact that its value is related to the expectancy of continued patronage. The significant question for purposes of depreciation is not whether the asset falls "within the core of the concept of goodwill," Brief for United States 19, but whether the asset is capable of being valued and whether that value diminishes over time. In a different context, the IRS itself succinctly articulated the relevant principle: "Whether or not an intangible asset, or a tangible asset, is depreciable for Federal income tax purposes depends upon the determination that the asset is actually exhausting, and that such exhaustion is susceptible of measurement." Rev. Rul. 68-483, 1968-2 Cum. Bull. 91-92.BAlthough we now hold that a taxpayer able to prove that a particular asset can be valued and that it has a limited useful life may depreciate its value over its useful life regardless of how much the asset appears to reflect the expectancy of continued patronage, we do not mean to imply that the taxpayer's burden of proof is insignificant. On the contrary, that burden often will prove too great to bear. See, e. g., Brief for Coopers & Lybrand as Amicus Curiae 11 ("For example, customer relationships arising from newsstand sales cannot be specifically identified. In [our] experience, customers were identified but their purchases were too sporadic and unpredictable to reasonably ascertain either the567duration of the relationships or the value of the relationships (based on their net income stream)" (emphasis in original)).Petitioner's burden in this case was made significantlylighter by virtue of the Government's litigation strategy:"[B]ecause of the stipulation reached by the parties, Morning Ledger need not prove either the specific usefullives of the paid subscribers of the Booth newspapers as of May 31, 1977, or that Dr. Glasser [its statistical expert] has correctly estimated those lives. In light of the stipulation, [the Government's] argument with regard to Dr. Glasser's estimation of the specific useful lives of the Booth subscribers is wholly irrelevant. Instead, Dr. Glasser's testimony establishes that qualified experts could estimate with reasonable accuracy the remaining useful lives of the paid subscribers of the Booth newspapers as of May 31, 1977." 734 F. Supp., at 181.Petitioner also proved to the satisfaction of the District Court that the "paid subscribers" asset was not selfregenerating, thereby distinguishing it for purposes of applying the mass-asset rule:"[T]here is no automatic replacement for a subscriber who terminates his or her subscription. Although the total number of subscribers may have or has remained relatively constant, the individual subscribers will not and have not remained the same, and those that mayor have discontinued their subscriptions can be or have been replaced only through the substantial efforts of the Booth newspapers." Id., at 180.The 460,000 "paid subscribers" constituted a finite set of subscriptions, existing on a particular date-May 31, 1977. The asset was not composed of constantly fluctuating components; rather, it consisted of identifiable subscriptions each568568 NEWARK MORNING LEDGER CO. v. UNITED STATESof which had a limited useful life that could be estimated with reasonable accuracy according to generally accepted statistical principles. Petitioner proved as a matter of fact that the value of the "paid subscribers" diminished over an ascertainable period of time.14CPetitioner estimated the fair market value of the "paid subscribers" at approximately $67.8 million. This figure was found by computing the present value of the after-tax subscription revenues to be derived from the "paid subscribers," less the cost of collecting those revenues, and adding the present value of the tax savings resulting from the depreciation of the "paid subscribers." As the District Court explained, the taxpayer's experts "utilized this method because they each independently concluded that this method best determined the additional value of the Booth newspapers attributable to the existence of the paid subscribers as of May 31, 1977, and, thus, the fair market value of those subscribers." Id., at 183. The Government presented no evidence challenging the accuracy of this methodology. It14 The dissent spends a substantial amount of time worrying about the sufficiency of petitioner's evidence. See post, at 576-582. The problem with petitioner's expert, according to the dissent, is that he predicted only how long a subscriber is likely to subscribe, and this "tells us nothing about how long date-of-sale subscriber habit or inertia will remain a cause of predicted subscriber faithfulness." Post, at 581. The dissent concludes that "Ledger's expert on his own terms has not even claimed to make the showing of definite duration necessary to depreciate an asset under § 167(a)." Post, at 582. We have little doubt that had the Government presented credible evidence challenging the relevance of this testimony, the District Court would have had a more difficult time deciding this case. As it happened, however, petitioner's evidence of the useful life of the "paid subscribers" was the only evidence the District Court had before it. The dissent skillfully demonstrates certain vulnerabilities in petitioner's proof, but the Government chose, rather, to rest its entire case on a legal argument that we now reject. This case was lost at trial.569took the view that the only value attributable to the "paid subscribers" was equivalent to the cost of generating a similar list of new subscribers, and it estimated that cost to be approximately $3 million. The Court of Appeals agreed with the Government that this "cost approach" was the only appropriate method for valuing the list of subscribers. "The fact is that, when employed in the context of the sale of an ongoing concern, the income approach to valuing a list of customers inherently includes much or all of the value of the expectancy that those customers will continue their patronage-i. e., the goodwill of the acquired concern." 945 F. 2d, at 568.Both the Government and the Court of Appeals mischaracterized the asset at issue as a mere list of names and addresses. The uncontroverted evidence presented at trial revealed that the "paid subscribers" had substantial value over and above that of a mere list of customers. App. 67 (Price Waterhouse's Fair Market Value Study of Paid Newspaper Subscribers to Booth Newspapers as of May 31, 1977); id., at 108-111 (testimony of Roger J. Grabowski, Principal and National Director, Price Waterhouse Valuation Services). These subscribers were "seasoned"; they had subscribed to the paper for lengthy periods of time and represented a reliable and measurable source of revenue. In contrast to new subscribers, who have no subscription history and who might not last beyond the expiration of some promotional incentive, the "paid subscribers" at issue here provided a regular and predictable source of income over an estimable period of time. The cost of generating a list of new subscribers is irrelevant, for it represents the value of an entirely different asset. We agree with the District Court when it concluded:"Although it was possible to estimate the direct cost of soliciting additional subscribers to the Booth newspapers, those subscribers if obtained were not and would not have been comparable, in terms of life characteris-570570 NEWARK MORNING LEDGER CO. v. UNITED STATEStics or value, to the paid subscribers of the Booth newspapers as of May 31, 1977 .... The cost of generating such marginal subscribers would not reflect the fair market value of the existing subscribers of the Booth newspapers as of May 31, 1977." 734 F. Supp., at 181.Because it continued to insist that petitioner had used the wrong valuation methodology, the Government failed to offer any evidence to challenge the accuracy of petitioner's application of the "income approach." The District Court found that the aggregate fair market value of the "paid subscribers" of the Booth newspapers as of May 31, 1977-i. e., "the price at which the asset would change hands between a hypothetical willing buyer and willing seller, neither being under any compulsion to buy or sell, both parties having reasonable knowledge of relevant facts," id., at 185-was $67,773,000, with a corresponding adjusted income tax basis of $71,201,395. Petitioner was entitled to depreciate this adjusted basis using a straight-line method over the stipulated useful lives.VIPetitioner has borne successfully its substantial burden of proving that "paid subscribers" constitutes an intangible asset with an ascertainable value and a limited useful life, the duration of which can be ascertained with reasonable accuracy. It has proved that the asset is not self-regenerating but rather wastes as the finite number of component subscriptions are canceled over a reasonably predictable period of time. The relationship this asset may have to the expectancy of continued patronage is irrelevant, for it satisfies all the necessary conditions to qualify for the depreciation allowance under § 167 of the Code.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, 1992SyllabusNEWARK MORNING LEDGER CO., AS SUCCESSOR TO THE HERALD CO. v. UNITED STATESCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUITNo. 91-1135. Argued November 10, 1992-Decided April 20, 1993Petitioner newspaper publisher is the successor to The Herald Company.When, in 1976, Herald purchased substantially all the outstanding shares of Booth Newspapers, Inc., it allocated its adjusted income tax basis in the Booth shares among the assets it acquired in its merger with Booth. Among other things, it allocated $67.8 million to an intangible asset denominated "paid subscribers," a figure that was petitioner's estimate of future profits to be derived from identified subscribers to Booth's eight newspapers on the date of merger. On its federal income tax returns for 1977-1980, Herald claimed depreciation deductions for the $67.8 million, which were disallowed by the Internal Revenue Service (IRS) on the ground that the concept of "paid subscribers" was indistinguishable from goodwill and, therefore, was nondepreciable. Herald paid the taxes, and petitioner filed refund claims and ultimately brought suit in the District Court to recover taxes and interest paid. At trial, the Government did not contest petitioner's expert evidence on the methodology used to calculate its figure and stipulated to the useful life of "paid subscribers" for each newspaper. Instead, it estimated the asset's value at $3 million, the cost of generating new subscriptions, and its principal argument remained that the asset was indistinguishable from goodwill. The court ruled in petitioner's favor, finding that the asset was not self-regenerating-i. e., it had a limited useful life, the duration of which could be calculated with reasonable accuracy-that petitioner properly calculated its value, and that it was separate and distinct from goodwill. The Court of Appeals reversed, holding that even though the asset may have a limited useful life that can be ascertained with reasonable accuracy, its value is not separate and distinct from goodwill.Held:1. A taxpayer able to prove that a particular asset can be valued and that it has a limited useful life may depreciate its value over its useful life regardless of how much the asset appears to reflect the expectancy of continued patronage. Pp. 553-566.547(a) While the depreciation allowance of § 167(a) of the Internal Revenue Code applies to intangible assets, the IRS has consistently taken the position that goodwill is nondepreciable. Since the value of customer-based intangibles, such as customer and subscriber lists, obviously depends on continued and voluntary customer patronage, the question has been whether these intangibles can be depreciated notwithstanding their relationship to such patronage. The "mass asset" rule that courts often resort to in considering this question prohibits depreciation when the assets constitute self-regenerating assets that may change but never waste. Pp. 553-560.(b) Whether or not taxpayers have been successful in separating depreciable intangible assets from goodwill in any particular case is a question of fact. The question is not whether an asset falls within the core of the concept of goodwill, but whether it is capable of being valued and whether that value diminishes over time. Pp. 560-566.2. Petitioner has borne successfully its substantial burden of proving that "paid subscribers" constitutes an intangible asset with an ascertainable value and a limited useful life, the duration of which can be ascertained with reasonable accuracy. It has proved that the asset is not self-regenerating but rather wastes as a finite number of component subscriptions are canceled over a reasonably predictable period of time. The Government presented no evidence to refute the methodology petitioner used to estimate the asset's fair market value, and the uncontroverted evidence presented at trial revealed that "paid subscribers" had substantial value over and above that of a mere list of customers, as it was mistakenly characterized by the Government. pp. 566-570.945 F.2d 555, reversed and remanded.BLACKMUN, J., delivered the opinion of the Court, in which STEVENS, O'CONNOR, KENNEDY, and THOMAS, JJ., joined. SOUTER, J., filed a dissenting opinion, in which REHNQUIST, C. J., and WHITE and SCALIA, JJ., joined, post, p. 571.Robert H. Bork argued the cause for petitioner. With him on the briefs were Bernard J. Long, Jr., Albert H. Turkus, Linda A. Fritts, Judith A. Mather, Corinne M. Antley, Peter C. Gould, and Steven Alan Reiss.Deputy Solicitor General Wallace argued the cause for the United States. With him on the brief were Solicitor General Starr, Acting Assistant Attorney General Bruton,548Full Text of Opinion

1999_98-2043

460 HUNT-WESSON, INC. v. FRANCHISE TAX ED. OF CAL.JUSTICE BREYER delivered the opinion of the Court.A State may tax a proportionate share of the income of a non domiciliary corporation that carries out a particular business both inside and outside that State. Allied-Signal, Inc. v. Director, Div. of Taxation, 504 U. S. 768, 772 (1992). The State, however, may not tax income received by a corporation from an '" "unrelated business activity'" which constitutes a '''discrete business enterprise."'" Id., at 773 (quoting Exxon Corp. v. Department of Revenue of Wis., 447 U. S. 207,224 (1980), in turn quoting Mobil Oil Corp. v. Commissioner of Taxes of Vt., 445 U. S. 425, 442, 439 (1980)). California's rules for taxing its share of a multistate corporation's income authorize a deduction for interest expense. But they permit (with one adjustment) use of that deduction only to the extent that the amount exceeds certain out-of-state income arising from the unrelated business activity of a discrete business enterprise, i. e., income that the State could not otherwise tax. We must decide whether those rules violate the Constitution's Due Process and Commerce Clauses. We conclude that they do.IThe legal issue is less complicated than may first appear, as examples will help to show. California, like many other States, uses what is called a "unitary business" incomecalculation system for determining its taxable share of a multistate corporation's business income. In effect, that system first determines the corporation's total income from its nationwide business. During the years at issue, it then averaged three ratios-those of the firm's California property, payroll, and sales to total property, payroll, and salesto make a combined ratio. Cal. Rev. & Tax Code Ann.Thorpe, Deputy Attorney General, Bruce M. Botelho, Attorney General of Alaska, Joseph P. Mazurek, Attorney General of Montana, and Heidi Heitkamp, Attorney General of North Dakota; and for the Multistate Tax Commission by Paull Mines.461§§ 25128, 25129, 25132, 25134 (West 1979). Finally, it multiplies total income by the combined ratio. The result is "California's share," to which California then applies its corporate income tax. If, for example, an Illinois tin can manufacturer, doing business in California and elsewhere, earns $10 million from its total nationwide tin can sales, and if California's formula determines that the manufacturer does 10% of its business in California, then California will impose its income tax upon 10% of the corporation's tin can income, $1 million.The income of which California taxes a percentage is constitutionally limited to a corporation's "unitary" income. Unitary income normally includes all income from a corporation's business activities, but excludes income that "derive[s] from unrelated business activity which constitutes a discrete business enterprise," Allied-Signal, 504 U. S., at 773 (internal quotation marks omitted). As we have said, this latter "nonunitary" income normally is not taxable by any State except the corporation's State of domicile (and the States in which the "discrete enterprise" carries out its business). Ibid.Any income tax system must have rules for determining the amount of net income to be taxed. California's system, like others, basically does so by asking the corporation to add up its gross income and then deduct costs. One of the costs that California permits the corporation to deduct is interest expense. The statutory language that authorizes that deduction-the language here at issue-contains an important limitation. It says that the amount of "interest deductible" shall be the amount by which "interest expense exceeds interest and dividend income ... not subject to allocation by formula," i. e., the amount by which the interest expense exceeds the interest and dividends that the nondomiciliary corporation has received from nonunitary businessor investment. Cal. Rev. & Tax Code Ann. § 24344 (West 1979) (emphasis added); Appendix, infra. Suppose the Illi-462462 HUNT-WESSON, INC. v. FRANCHISE TAX ED. OF CAL.nois tin can manufacturer has interest expense of $150,000; and suppose it receives $100,000 in dividend income from a nonunitary New Zealand sheep-farming subsidiary. California's rule authorizes an interest deduction, not of $150,000, but of $50,000, for the deduction is allowed only insofar as the interest expense "exceeds" this other unrelated income.Other language in the statute makes the matter a little more complex. One part makes clear that, irrespective of nonunitary income, the corporation may use the deduction against unitary interest income that it earns. § 24344. This means that if the Illinois tin can manufacturer has earned $100,000 from tin can related interest, say, interest paid on its tin can receipt bank accounts, the manufacturer can use $100,000 of its interest expense deduction to offset that interest income (though it would still lose the remaining $50,000 of deduction because of income from the New Zealand sheep farm). Another part provides an exception to the extent that the subsidiary paying the dividend has paid taxes to California. § § 24344, 24402. If the sheep farm were in California, not New Zealand (or at least to the extent it were taxable in California), the tin can manufacturer would not lose the deduction. We need not consider either of these complications here.One final complication involves a dispute between the parties over the amount of interest expense that the California statute at issue covers. Hunt-Wesson, Inc., claims that California (at least during the years at issue here) required interstate corporations first to determine what part of their interest expense was for interest related to the unitary business and what part was for interest related to other, nonunitary matters. It says that the statute then required it to put the latter to the side, so that only interest related to the unitary business was at issue. California agrees that the form it provided to corporations during the years at issue did work this way, but states that the form did not interpret the statute correctly. In its view, the statute takes all interest ex-463pense into account. Apparently California now believes that, if the tin can manufacturer had $100,000 interest expense related to its tin can business, and another $50,000 interest expense related to the New Zealand sheep farm (say, money borrowed to buy shares in the farm), then California's statute would count a total interest expense of $150,000, all of which California would permit it to deduct from its unitary tin can business income if, for example, it had no nonunitary New Zealand sheep farm income in that particular year. This matter, arguably irrelevant to the tax years here in question (Hunt-Wesson reported no nonunitary interest expense), is also irrelevant to our legal result. Therefore, we need not consider this particular dispute further.The question before us then is reasonably straightforward:Does the Constitution permit California to carve out an exception to its interest expense deduction, which it measures by the amount of nonunitary dividend and interest income that the non domiciliary corporation has received? Petitioner, Hunt-Wesson, Inc., is successor in interest to a nondomiciliary corporation. That corporation incurred interest expense during the years at issue. California disallowed the deduction for that expense insofar as the corporation had received relevant nonunitary dividend and interest income. Hunt-Wesson challenged the constitutional validity of the disallowance. The California Court of Appeal found it constitutional, No. A079969 (Dec. 11, 1998), App. 54; see also Pacific Tel. & Tel. Co. v. Franchise Tax Bd., 7 Cal. 3d 544, 498 P. 2d 1030 (1972) (upholding statute), and the California Supreme Court denied review, App. 67. We granted certiorari to consider the question.IIRelevant precedent makes clear that California's rule violates the Due Process and Commerce Clauses of the Federal Constitution. In Container Corp. of America v. Franchise Tax Bd., 463 U. S. 159 (1983), this Court wrote that the "Due464464 HUNT-WESSON, INC. v. FRANCHISE TAX ED. OF CAL.Process and Commerce Clauses ... do not allow a State to tax income arising out of interstate activities-even on a proportional basis-unless there is a '''minimal connection" or "nexus" between the interstate activities and the taxing State, and "a rational relationship between the income attributed to the State and the intrastate values of the enterprise."'" Id., at 165-166 (quoting Exxon Corp., 447 U. S., at 219-220, in turn quoting Mobil Oil Corp., 445 U. S., at 436, 437). Cf. International Harvester Co. v. Department of Treasury, 322 U. S. 340, 353 (1944) (Rutledge, J., concurring in part and dissenting in part) ("If there is a want of due process to sustain" a tax, "by that fact alone any burden the tax imposes on the commerce among the states becomes 'undue' "). The parties concede that the relevant income here-that which falls within the scope of the statutory phrase "not allocable by formula" -is income that, like the New Zealand sheep farm in our example, by itself bears no "rational relationship" or "nexus" to California. Under our precedent, this "nonunitary" income may not constitutionally be taxed by a State other than the corporation's domicile, unless there is some other connection between the taxing State and the income. Allied-Signal, 504 U. S., at 772-773.California's statute does not directly impose a tax on nonunitary income. Rather, it simply denies the taxpayer use of a portion of a deduction from unitary income (income like that from tin can manufacture in our example), income which does bear a "rational relationship" or "nexus" to California. But, as this Court once put the matter, a "'tax on sleeping measured by the number of pairs of shoes you have in your closet is a tax on shoes.'" Trinova Corp. v. Michigan Dept. of Treasury, 498 U. S. 358, 374 (1991) (quoting Jenkins, State Taxation of Interstate Commerce, 27 Tenn. L. Rev. 239, 242 (1960)). California's rule measures the amount of additional unitary income that becomes subject to its taxation (through reducing the deduction) by precisely the amount of nonunitary income that the taxpayer has received. And for that465reason, that which California calls a deduction limitation would seem, in fact, to amount to an impermissible tax. National Life Ins. Co. v. United States, 277 U. S. 508 (1928) (finding that a federal statute that reduced an insurance company's tax deduction for reserves by the amount of taxexempt interest the company received from a holding of "tax-free" municipal bonds constituted unlawful taxation of tax-exempt income).However, this principle does not end the matter. California offers a justification for its rule that seeks to relate the deduction limit to collection of California's tax on unitary income. If California could show that its deduction limit actually reflected the portion of the expense properly related to nonunitary income, the limit would not, in fact, be a tax on nonunitary income. Rather, it would merely be a proper allocation of the deduction. See Denman v. Slayton, 282 U. S. 514 (1931) (upholding Federal Tax Code's denial of interest expense deduction where borrowing is incurred to "purchase or carry" tax-exempt obligations).California points out that money is fungible, and that consequently it is often difficult to say whether a particular borrowing is "really" for the purpose of generating unitary income or for the purpose of generating nonunitary income. California's rule prevents a firm from claiming that it paid interest on borrowing for the first purpose (say, to build a tin can plant) when the borrowing is "really" for the second (say, to buy shares in the New Zealand sheep farm). Without some such rule, firms might borrow up to the hilt to support their (more highly taxed) unitary business needs, and use the freed unitary business resources to purchase (less highly taxed) nonunitary business assets. This "tax arbitrage" problem, California argues, is why this Court upheld the precursor of 26 U. S. C. § 265(a)(2), which denies the taxpayer an interest deduction insofar as the interest expense was "incurred or continued to purchase or carry" tax-exempt obligations or securities. Denman v. Slayton,466466 HUNT-WESSON, INC. v. FRANCHISE TAX ED. OF CAL.supra, at 519. This Court has consistently upheld deduction denials that represent reasonable efforts properly to allocate a deduction between taxable and tax-exempt income, even though such denials mean that the taxpayer owes more than he would without the denial. E. g., First Nat. Bank of Atlanta v. Bartow County Bd. of Tax Assessors, 470 U. S. 583 (1985).The California statute, however, pushes this concept past reasonable bounds. In effect, it assumes that a corporation that borrows any money at all has really borrowed that money to "purchase or carry," cf. 26 U. S. C. § 265(a)(2), its nonunitary investments (as long as the corporation has such investments), even if the corporation has put no money at all into nonunitary business that year. Presumably California believes that, in such a case, the unitary borrowing supports the nonunitary business to the extent that the corporation has any nonunitary investment because the corporation might have, for example, sold the sheep farm and used the proceeds to help its tin can operation instead of borrowing.At the very least, this last assumption is unrealistic. And that lack of practical realism helps explain why California's rule goes too far. A state tax code that unrealistically assumes that every tin can borrowing first helps the sheep farm (or the contrary view that every sheep farm borrowing first helps the tin can business) simply because of the theoretical possibility of a hypothetical sale of either business is a code that fails to "actually reflect a reasonable sense of how income is generated," Container Corp., 463 U. S., at 169, and in doing so assesses a tax upon constitutionally protected nonunitary income. That is so even if, as California claims, its rule attributes all interest expense both to unitary and to nonunitary income. And it is even more obviously so if, as Hunt-Wesson claims, California attributes all sheep-farmrelated borrowing to the sheep farm while attributing all tin-can-related borrowing first to the sheep farm as well.467No other taxing jurisdiction, whether federal or state, has taken so absolute an approach to the tax arbitrage problem that California presents. Federal law in comparable circumstances (allocating interest expense between domestic and foreign source income) uses a ratio of assets and gross income to allocate a corporation's total interest expense. See 26 CFR §§ 1.861-9T(f), (g) (1999). In a similar, but much more limited, set of circumstances, the federal rules use a kind of modified tracing approach-requiring that a certain amount of interest expense be allocated to foreign income in situations where a United States business group's loans to foreign subsidiaries and the group's total borrowing have increased relative to recent years (subject to a number of adjustments), and both loans and borrowing exceed certain amounts relative to total assets. See § 1.861-10. Some States other than California follow a tracing approach. See, e. g., D. C. Mun. Regs., Tit. 9, § 123.4 (1998); Ga. Rules and Regs. § 560-7-7.03(3) (1999). Some use a set of ratio-based formulas to allocate borrowing between the generation of unitary and nonunitary income. See, e. g., Ala. Code § 40-18-35(a)(2) (1998); La. Reg. § 1130(B)(1) (1988). And some use a combination of the two approaches. See, e. g., N. M. Admin. Code, Tit. 3, § 5.5.8 (1999); Utah Code Ann. § 59-7-101 (19) (1999). No other jurisdiction uses a rule like California's.Ratio-based rules like the one used by the Federal Government and those used by many States recognize that borrowing, even if supposedly undertaken for the unitary business, may also (as California argues) support the generation of nonunitary income. However, unlike the California rule, ratio-based rules do not assume that all borrowing first supports nonunitary investment. Rather, they allocate each borrowing between the two types of income. Although they may not reflect every firm's specific actions in any given year, it is reasonable to expect that, over some period of468468 HUNT-WESSON, INC. v. FRANCHISE TAX ED. OF CAL.Appendix to opinion of the Courttime, the ratios used will reflect approximately the amount of borrowing that firms have actually devoted to generating each type of income. Conversely, it is simply not reasonable to expect that a rule that attributes all borrowing first to nonunitary investment will accurately reflect the amount of borrowing that has actually been devoted to generating each type of income.Because California's offset provision is not a reasonable allocation of expense deductions to the income that the expense generates, it constitutes impermissible taxation of income outside its jurisdictional reach. The provision therefore violates the Due Process and Commerce Clauses of the Constitution.The judgment of the California Court of Appeal is reversed, and the case is remanded for proceedings not inconsistent with this opinion.It is so ordered

OCTOBER TERM, 1999SyllabusHUNT-WESSON, INC. v. FRANCHISE TAX BOARD OF CALIFORNIACERTIORARI TO THE COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICTNo. 98-2043. Argued January 12, 2000-Decided February 22, 2000A State may tax a proportionate share of the "unitary" income of a nondomiciliary corporation that carries out a particular business both inside and outside that State, Allied-Signal, Inc. v. Director, Div. of Taxation, 504 U. S. 768, 772, but may not tax "nonunitary" income received by a nondomiciliary corporation from an "unrelated business activity" which constitutes a "discrete business enterprise," e. g., id., at 773. California's "unitary business" income-calculation system for determining that State's taxable share of a multistate corporation's business income authorizes a deduction for interest expense, but permits (with one adjustment) use of that deduction only to the extent that the amount exceeds certain out-of-state income arising from the unrelated business activity of a discrete business enterprise, i. e., nonunitary income that the State could not otherwise tax under this Court's decisions. Petitioner HuntWesson, Inc., is a successor in interest to a nondomiciliary of California that incurred interest expense during the years at issue. California disallowed the deduction for that expense insofar as the nondomiciliary corporation had received relevant nonunitary dividend and interest income. Hunt-Wesson challenged the disallowance's constitutional validity. The State Court of Appeal found it constitutional, and the State Supreme Court denied review.Held: Because California's interest deduction offset provision is not a reasonable allocation of expense deductions to the income that the expense generates, it constitutes impermissible taxation of income outside the State's jurisdictional reach in violation of the Federal Constitution's Due Process and Commerce Clauses. States may not tax income arising out of interstate activities-even on a proportional basis-unless there is a "minimal connection" or "nexus" between such activities and the taxing State, and a "rational relationship between the income attributed to the State and the intrastate values of the enterprise." Container Corp. of America v. Franchise Tax Bd., 463 U. S. 159, 165-166. Although California's statute does not directly impose a tax on nonunitary income, it measures the amount of additional unitary income that becomes subject to its taxation (through reducing the deduction) by precisely the amount of nonunitary income that the taxpayer has received. Thus, that which California calls a deduction limitation would seem, in fact, to459be an impermissible tax. National Life Ins. Co. v. United States, 277 U. S. 508. If California could show that its deduction limit actually reflected the portion of the expense properly related to nonunitary income, however, the limit would not, in fact, be a tax on that income, but merely a proper allocation of the deduction. See Denman v. Slayton, 282 U. S. 514. The state statute, however, pushes this proportional allocation concept past reasonable bounds. In effect, it assumes that a corporation that borrows any money at all has really borrowed that money to "purchase or carry," cf. 26 U. S. C. § 265(a)(2), its nonunitary investments (as long as the corporation has such investments), even if the corporation has put no money at all into nonunitary business that year. No other taxing jurisdiction has taken so absolute an approach. Rules used by the Federal Government and many States that utilize a ratio of assets and gross income to allocate a corporation's total interest expense between domestic and foreign source income recognize that borrowing, even if supposedly undertaken for the unitary business, may also support nonunitary income generation. However, unlike the California rule, ratio-based rules do not assume that all borrowing first supports nonunitary investment. Rather, they allocate each borrowing between the two types of income. Over time, it is reasonable to expect that the ratios used will reflect approximately the amount of borrowing that firms have actually devoted to generating each type of income. Conversely, it is simply not reasonable to expect that a rule that attributes all borrowing first to nonunitary investment will accurately reflect the amount of borrowing that has actually been devoted to generating each type of income. Pp. 463-468.Reversed and remanded.BREYER, J., delivered the opinion for a unanimous Court.Walter Hellerstein argued the cause for petitioner. With him on the briefs were Charles J. Moll III, Edwin P. Antolin, Fred O. Marcus, and Drew S. Days III.David Lew, Deputy Attorney General of California, argued the cause for respondent. With him on the brief were Bill Lockyer, Attorney General, and Timothy G. Laddish, Senior Assistant Attorney General. **Briefs of amici curiae urging reversal were filed for General Electric Co. by Carter G. Phillips, Scott J. Heyman, Nathan C. Sheers, John Amato, Amy Eisenstadt, and Frank A. Yanover; and for Tax Executives Institute, Inc., by Timothy J. McCormally and Mary L. Fahey.Briefs of amici curiae urging affirmance were filed for the State of Idaho et al. by Alan G. Lance, Attorney General of Idaho, and Geoffrey L.460Full Text of Opinion

1995_95-323

After the conversion, the IRS filed claims for taxes, interest, and penalties that accrued after the Chapter 11 filing but before the Chapter 7 conversion, and although the parties agreed that the claims for taxes and interest were entitled to priority as administrative expenses, §§ 503(b), 507(a)(1), and 726(a)(1),1 they disagreed about the priority to be given tax penalties. The Bankruptcy Court determined that the penalties (like the taxes and interest) were administrative expenses under § 503(b) but held them to be subject to equitable subordination under § 510(c).2 In so doing, the court read that section to provide authority not only to deal with inequitable conduct on the Government's part, but also to adjust a statutory priority of a category of claims. The Bankruptcy Court accordingly weighed the relative equities that seemed to flow from what it described as "the Code's preference for compensating actual loss claims," and subordinated the tax penalty claim to those of the general unsecured creditors. In re First Truck Lines, Inc., 141 B. R. 621, 629 (SD Ohio 1992). The District Court affirmed. Internal Revenue Service v. Noland, 190 B. R. 827 (SD Ohio 1993).After reviewing the legislative history of the 1978 revision to the Bankruptcy Code and several recent appeals cases on equitable subordination of tax penalties, the Sixth Circuit affirmed, as well. In re First Truck Lines, Inc., 48 F.3d 210 (1995). The Sixth Circuit stated that it did1 Section 507(a)(1) provides, in relevant part: "(a) The following expenses and claims have priority in the following order: (1) First, administrative expenses allowed under section 503(b) of this title .... " Under § 503(b)(1), administrative expenses include "any tax ... incurred by the estate" (with certain exceptions not relevant here), as well as "any fine [or] penalty ... relating to [such] a tax .... " Section 726(a)(1) adopts the order of payment specified in § 507 for Chapter 7 proceedings.2 Section 510(c) provides that "the court may ... under principles of equitable subordination, subordinate for purposes of distribution all or part of an allowed claim .... "538"not see the fairness or the justice in permitting the Commissioner's claim for tax penalties, which are not being assessed because of pecuniary losses to the Internal Revenue Service, to enjoy an equal or higher priority with claims based on the extension of value to the debtor, whether secured or not. Further, assessing tax penalties against the estate of a debtor no longer in existence serves no punitive purpose. Because of the nature of postpetition, nonpecuniary loss tax penalty claims in a Chapter 7 case, we believe such claims are susceptible to subordination. To hold otherwise would be to allow creditors who have supported the business during its attempt to reorganize to be penalized once that effort has failed and there is not enough to go around." Id., at 218.See also Burden v. United States, 917 F.2d 115, 120 (CA3 1990); Schultz Broadway Inn v. United States, 912 F.2d 230, 234 (CA8 1990); In re Virtual Network Services Corp., 902 F. 2d 1246, 1250 (CA71990). We granted certiorari to determine the appropriate scope of the power under the Bankruptcy Code (Code) to subordinate a tax penalty, 516 U. S. 1005 (1995), and we now reverse.The judge-made doctrine of equitable subordination predates Congress's revision of the Code in 1978. Relying in part on our earlier cases, see, e. g., Comstock v. Group of Institutional Investors, 335 U. S. 211 (1948); Pepper v. Litton, 308 U. S. 295 (1939); Taylor v. Standard Gas & Elec. Co., 306 U. S. 307 (1939), the Fifth Circuit, in its influential opinion in In re Mobile Steel Co., 563 F.2d 692, 700 (1977), observed that the application of the doctrine was generally triggered by a showing that the creditor had engaged in "some type of inequitable conduct." Mobile Steel discussed two further conditions relating to the application of the doctrine: that the misconduct have "resulted in injury to the creditors of the bankrupt or conferred an unfair advantage on the claimant," and that the subordination "not be incon-539sistent with the provisions of the Bankruptcy Act." Ibid. This last requirement has been read as a "reminder to the bankruptcy court that although it is a court of equity, it is not free to adjust the legally valid claim of an innocent party who asserts the claim in good faith merely because the court perceives that the result is inequitable." DeNatale & Abram, The Doctrine of Equitable Subordination as Applied to Nonmanagement Creditors, 40 Bus. Law. 417, 428 (1985). The District Courts and Courts of Appeals have generally followed the Mobile Steel formulation, In re Baker & Getty Financial Services, Inc., 974 F.2d 712, 717 (CA6 1992).Although Congress included no explicit criteria for equitable subordination when it enacted § 510(c)(1), the reference in § 510(c) to "principles of equitable subordination" clearly indicates congressional intent at least to start with existing doctrine. This conclusion is confirmed both by principles of statutory construction, see Midlantic Nat. Bank v. New Jersey Dept. of Environmental Protection, 474 U. S. 494, 501 (1986) ("The normal rule of statutory construction is that if Congress intends for legislation to change the interpretation of a judicially created concept, it makes that intent specific. The Court has followed this rule with particular care in construing the scope of bankruptcy codifications") (citation omitted), and by statements in the legislative history that Congress "intended that the term 'principles of equitable subordination' follow existing case law and leave to the courts development of this principle," 124 Congo Rec. 32398 (1978) (Rep. Edwards); see also id., at 33998 (Sen. DeConcini). In keeping with pre-1978 doctrine, many Courts of Appeals have continued to require inequitable conduct before allowing the equitable subordination of most claims, see, e. g., In re Fabricators, Inc., 926 F.2d 1458, 1464 (CA5 1991); In re Bellanca Aircraft Corp., 850 F.2d 1275, 1282-1283 (CA8 1988), although several have done away with the requirement when the claim in question was a tax penalty.540See, e. g., Burden, supra, at 120; Schultz, supra, at 234; In re Virtual Network, supra, at 1250.Section 510(c) may of course be applied to subordinate a tax penalty, since the Code's requirement that a Chapter 7 trustee must distribute assets "in the order specified in ... section 507" (which gives a first priority to administrative expense tax penalties) is subject to the qualification, "[e]xcept as provided in section 510 of this title .... " 11 U. S. C. § 726(a). Thus, "principles of equitable subordination" may allow a bankruptcy court to reorder a tax penalty in a given case. It is almost as clear that Congress meant to give courts some leeway to develop the doctrine, 124 Congo Rec. 33998 (1978), rather than to freeze the pre-1978 law in place. The question is whether that leeway is broad enough to allow subordination at odds with the congressional ordering of priorities by category.The answer turns on Congress's probable intent to preserve the distinction between the relative levels of generality at which trial courts and legislatures respectively function in the normal course. Hence, the adoption in § 510(c) of "principles of equitable subordination" permits a court to make exceptions to a general rule when justified by particular facts, cf. Hecht Co. v. Bowles, 321 U. S. 321, 329 (1944) ("The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case"). But if the provision also authorized a court to conclude on a general, categorical level that tax penalties should not be treated as administrative expenses to be paid first, it would empower a court to modify the operation of the priority statute at the same level at which Congress operated when it made its characteristically general judgment to establish the hierarchy of claims in the first place. That is, the distinction between characteristic legislative and trial court functions would simply be swept away, and the statute would delegate legislative revision, not authorize equitable exception. We find such a reading im-541probable in the extreme. "Decisions about the treatment of categories of claims in bankruptcy proceedings ... are not dictated or illuminated by principles of equity and do not fall within the judicial power of equitable subordination .... " Burden, 917 F. 2d, at 122 (Alito, J., concurring in part and dissenting in part).Just such a legislative type of decision, however, underlies the Bankruptcy Court's reordering of priorities in question here, as approved by the District Court and the Court of Appeals. Despite language in its opinion about requiring a balancing of the equities in individual cases, the Court of Appeals actually concluded that "postpetition, nonpecuniary loss tax penalty claims" are "susceptible to subordination" by their very "nature." 48 F. 3d, at 218. And although the court said that not every tax penalty would be equitably subordinated, ibid., that would be the inevitable result of consistent applications of the rule employed here, which depends not on individual equities but on the supposedly general unfairness of satisfying "postpetition, nonpecuniary loss tax penalty claims" before the claims of a general creditor.The Court of Appeals's decision thus runs directly counter to Congress's policy judgment that a postpetition tax penalty should receive the priority of an administrative expense, 11 U. s. C. §§ 503(b)(1)(C), 507(a)(1), and 726(a)(1). This is true regardless of Noland's argument that the Bankruptcy Court made a distinction between compensatory and noncompensatory tax penalties, for this was itself a categorical distinction at a legislative level of generality. Indeed, Congress recognized and employed that distinction elsewhere in the priority provisions: Congress specifically assigned 8th priority to certain compensatory tax penalties, see § 507(a)(8)(G), and 12th priority to prepetition, noncompensatory penalties, see §§ 726(a)(1) and (4).33 Noland argues that "although the penalties at issue arose postpetition," this claim should be viewed as a prepetition penalty because a "reorganized debtor is in many respects similar to a prepetition debtor ... [and]542The Sixth Circuit, to be sure, invoked a more modest authority than legislative revision when it relied on statements by the congressional leaders of the 1978 Code revisions, see 48 F. 3d, at 215, 217-218, and it is true that Representative Edwards and Senator DeConcini stated that "under existing law, a claim is generally subordinated only if [the] holder of such claim is guilty of inequitable conduct, or the claim itself is of a status susceptible to subordination, such as a penalty or a claim for damages arising from the purchase or sale of a security of the debtor." 124 Congo Rec. 32398 (1978) (Rep. Edwards); see also id., at 33998 (Sen. DeConcini). But their remarks were not statements of existing law and the Sixth Circuit's reliance on the unexplained reference to subordinated penalties ran counter to this Court's previous endorsement of priority treatment for postpetition tax penalties. See Nicholas v. United States, 384 U. S. 678, 692-695 (1966). More fundamentally, statements in legislative history cannot be read to convert statutory leeway for judicial development of a rule on particularized exceptions into delegated authority to revise statutory categorization, untethered to any obligation to preserve the coherence of substantive congressional judgments.the conversion of [this] case to chapter 7 was tantamount to the filing of a new petition." Brief for Respondent 16, n. 7. But we agree with the Sixth Circuit, see In re First Truck Lines, Inc., 48 F.3d 210, 214 (1995), that the penalties at issue here are postpetition administrative expenses pursuant to 11 U. S. C. §§ 348(d), 503(b)(1). Although § 348(d) provides that a "claim against the estate or the debtor that arises after the order for relief but before conversion in a case that is converted under section 1112, 1208, or 1307 of this title, other than a claim specified in section 503(b) of this title, shall be treated for all purposes as if such claim had arisen immediately before the date of the filing of the petition," the claim for priority here is "specified in section 503(b)" and Congress has already determined that it is not to be treated like prepetition penalties. Noland mayor may not have a valid policy argument, but it is up to Congress, not this Court, to revise the determination if it so chooses.543Given our conclusion that the Sixth Circuit's rationale was inappropriately categorical in nature, we need not decide today whether a bankruptcy court must always find creditor misconduct before a claim may be equitably subordinated. We do hold that (in the absence of a need to reconcile conflicting congressional choices) the circumstances that prompt a court to order equitable subordination must not occur at the level of policy choice at which Congress itself operated in drafting the Code. Cf. In re Ahlswede, 516 F.2d 784, 787 (CA9) ("[T]he [equity] chancellor never did, and does not now, exercise unrestricted power to contradict statutory or common law when he feels a fairer result may be obtained by application of a different rule"), cert. denied sub nom. Stebbins v. Crocker Citizens Nat. Bank, 423 U. S. 913 (1975); In re Columbia Ribbon Co., 117 F.2d 999, 1002 (CA3 1941) (court cannot "set up a subclassification of claims ... and fix an order of priority for the sub-classes according to its theory of equity").In this instance, Congress could have, but did not, deny noncompensatory, postpetition tax penalties the first priority given to other administrative expenses, and bankruptcy courts may not take it upon themselves to make that categorical determination under the guise of equitable subordination. 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, 1995SyllabusUNITED STATES v. NOLAND, TRUSTEE FOR DEBTOR FIRST TRUCK LINES, INC.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUITNo. 95-323. Argued March 25, 1996-Decided May 13, 1996The Internal Revenue Service filed claims in the Bankruptcy Court for taxes, interest, and penalties that accrued after debtor First Truck Lines, Inc., sought relief under Chapter 11 of the Bankruptcy Code (Code) but before the case was converted to a Chapter 7 bankruptcy. The court found that all of the IRS's claims were entitled to first priority as administrative expenses under 11 U. S. C. §§ 503(b)(I)(C) and 507(a)(I), but held that the penalty claim was subject to "equitable subordination" under § 510(c), which the court interpreted as giving it authority not only to deal with inequitable Government conduct, but also to adjust a statutory priority of a category of claims. The court's decision to subordinate the penalty claim to the claims of the general unsecured creditors was affirmed by the District Court and the Sixth Circuit, which concluded that postpetition, nonpecuniary loss tax penalty claims are susceptible to subordination by their very nature.Held: A bankruptcy court may not equitably subordinate claims on a categorical basis in derogation of Congress's priorities scheme. The language of § 510(c), principles of statutory construction, and legislative history clearly indicate Congress's intent in its 1978 revision of the Code to use the existing judge-made doctrine of equitable subordination as the starting point for deciding when subordination is appropriate. By adopting "principles of equitable subordination," § 510(c) allows a bankruptcy court to reorder a tax penalty when justified by particular facts. It is also clear that Congress meant to give courts some leeway to develop the doctrine. However, a reading of the statute that would give courts leeway broad enough to allow subordination at odds with the congressional ordering of priorities by category is improbable in the extreme. The statute would then empower a court to modify the priority provision's operation at the same level at which Congress operated when it made its characteristically general judgment to establish the hierarchy of claims in the first place, thus delegating legislative revision, not authorizing equitable exception. Nonetheless, just such a legislative type of decision underlies the reordering of priorities here. The Sixth Circuit's decision runs directly counter to Congress's policy judgment that a postpetition tax penalty should receive the priority of an536administrative expense. Since the Sixth Circuit's rationale was inappropriately categorical in nature, this Court need not decide whether a bankruptcy court must always find creditor misconduct before a claim may be equitably subordinated. Pp. 538-543.48 F.3d 210, reversed and remanded.SOUTER, J., delivered the opinion for a unanimous Court.Kent L. Jones argued the cause for the United States.With him on the briefs were Solicitor General Days, Assistant Attorney General Argrett, Deputy Solicitor General Wallace, Gary D. Gray, and Edward T. Perelmuter.Raymond J. Pikna, Jr., argued the cause for respondent.With him on the brief were Thomas R. Noland and Gregory P. Garner.JUSTICE SOUTER delivered the opinion of the Court.The issue in this case is the scope of a bankruptcy court's power of equitable subordination under 11 U. S. C. § 510(c). Here, in the absence of any finding of inequitable conduct on the part of the Government, the Bankruptcy Court subordinated the Government's claim for a postpetition, noncompensatory tax penalty, which would normally receive first priority in bankruptcy as an "administrative expense," §§ 503(b)(1)(C), 507(a)(1). We hold that the bankruptcy court may not equitably subordinate claims on a categorical basis in derogation of Congress's scheme of priorities.In April 1986, First Truck Lines, Inc., voluntarily filed for relief under Chapter 11 of the Bankruptcy Code, and in the subsequent operation of its business as a debtor-inpossession incurred, but failed to discharge, tax liabilities to the Internal Revenue Service (IRS). First Truck moved to convert the case to a Chapter 7 liquidation in June 1988, and in August 1988 the Bankruptcy Court granted that motion and appointed respondent Thomas R. Noland as trustee. The liquidation of the estate's assets raised insufficient funds to pay all of the creditors.537Full Text of Opinion

1961_50

MR. JUSTICE STEWART delivered the opinion of the Court.The petitioner and the respondent (which we shall call the union and the employer) were parties to a collective bargaining contract within the purview of the National Labor Relations Act. The contract contained the following provisions, among others:"ARTICLE II" "The Employer reserves the right to discharge any man in his employ if his work is not satisfactory.""* * * *" "ARTICLE XIV" "Should any difference as to the true interpretation of this agreement arise, same shall be submitted to a Board of Arbitration of two members, one representing the firm and one representing the Union. If said members cannot agree, a third member, who must be a disinterested party, shall be selected, and the decision of the said Board of Arbitration shall be binding. It is further agreed by both parties hereto that, during such arbitration, there shall be no suspension of work.""Should any difference arise between the employer and the employee, same shall be submitted to arbitration by both parties. Failing to agree, they shall mutually appoint a third person whose decision shall be final and binding. "Page 369 U. S. 97In May of 1958, an employee named Welsch was discharged by the employer after he had damaged a new fork-lift truck by running it off a loading platform and onto some railroad tracks. When a business agent of the union protested, he was told by a representative of the employer that Welsch had been discharged because of unsatisfactory work. The union thereupon called a strike to force the employer to rehire Welsch. The strike lasted eight days. [Footnote 1] After the strike was over, the issue of Welsch's discharge was submitted to arbitration. Some five months later, the Board of Arbitration rendered a decision, ruling that Welsch's work had been unsatisfactory, that his unsatisfactory work had been the reason for his discharge, and that he was not entitled to reinstatement as an employee.In the meantime, the employer had brought this suit against the union in the Superior Court of King County, Washington, asking damages for business losses caused by the strike. After a trial that court entered a judgment in favor of the employer in the amount of $6,501.60. [Footnote 2] On appeal, the judgment was affirmed by Department One of the Supreme Court of Washington. 57 Wash. 2d 95, 356 P.2d 1. The reviewing court held that the preemption doctrine of San Diego Building Trades Council v. Garmon, 359 U. S. 236, did not deprive it of jurisdiction over the controversy. The court further held that § 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185, could not "reasonably be interpreted as preempting state jurisdiction, or as affecting it by limiting the substantive law to be applied." 57 Wash. 2d at 102, 356 P.2d at 5. Expressly applying principles of state law, the court reasoned that the strike was a violation Page 369 U. S. 98 of the collective bargaining contract, because it was an attempt to coerce the employer to forego his contractual right to discharge an employee for unsatisfactory work. [Footnote 3] We granted certiorari to consider questions of federal labor law which this case presents. 365 U.S. 868.We note at the outset a question as to our jurisdiction. Although the judgment before us has been certified as that of the Supreme Court of Washington, this case was actually heard and decided by Department One of that court, consisting of five of the nine members of the full court. Since the union could have filed a petition for rehearing en banc but did not do so, the argument is made that the judgment before us was not "rendered by the highest court of a State in which a decision could be had," and that the judgment is one we therefore have no power to review. 28 U.S.C. § 1257. This argument primarily rests upon Gorman v. Washington University, 316 U. S. 98, which held that, in view of the structure of Missouri's judicial system, a separate division of the Supreme Court of that State was not the highest state court in which a decision of a federal question could be had. [Footnote 4] It is evident, however, that the law governing rehearings in the Supreme Court of Washington is quite unlike the particularized provisions of Missouri law which led this Court to dismiss the writ in Gorman. Page 369 U. S. 99As the opinion in Gorman pointed out, the Constitution of the State of Missouri expressly conferred the right to an en banc rehearing by the Supreme Court of Missouri in any case originally decided by a division of the court in which a federal question was involved. It was this provision of the state constitution which was the basis for the conclusion in Gorman that the State of Missouri did not regard a decision by a division of the court as the final step in the state appellate process in a case involving a federal question. "[T]he constitution of Missouri," it was said, "has thus provided in this class of cases for review of the judgment of a division. . . ." 316 U.S. at 316 U. S. 100.By contrast, a rehearing en banc before the Supreme Court of Washington is not granted as a matter of right. The Constitution and statutes of the State of Washington authorize its Supreme Court to sit in two Departments, each of which is empowered "to hear and determine causes, and all questions arising therein." [Footnote 5] Cases coming before Page 369 U. S. 100 the court may be assigned to a Department or to the court en banc at the discretion of the Chief Justice and a specified number of other members of the court. [Footnote 6] The state law further provides that the decision of a Department becomes a final judgment of the Supreme Court of Washington, unless within 30 days a petition for rehearing has been filed, or a rehearing has been ordered on the court's own initiative. [Footnote 7]We can discern in Washington's system no indication that the decision in the present case, rendered unanimously Page 369 U. S. 101 by a majority of the judges of the Supreme Court of Washington, was other than the final word of the State's final court. [Footnote 8] This case is thus properly before us, and we turn to the issues which it presents.One of those issues -- whether § 301(a) of the Labor Management Relations Act of 1947 deprives state courts of jurisdiction over litigation such as this -- we have decided this Term in Charles Dowd Box Co. v. Courtney, 368 U. S. 502. For the reasons stated in our opinion in that case, we hold that the Washington Supreme Court was correct in ruling that it had jurisdiction over this controversy. [Footnote 9] Page 369 U. S. 102 There remain for consideration two other issues, one of them implicated but not specifically decided in Dowd Box. Was the Washington court free, as it thought, to decide this controversy within the limited horizon of its local law? If not, does applicable federal law require a result in this case different from that reached by the state court?In Dowd Box, we proceeded upon the hypothesis that state courts would apply federal law in exercising jurisdiction over litigation within the purview of § 301(a), although, in that case, there was no claim of any variance in relevant legal principles as between the federal law and that of Massachusetts. In the present case, by contrast, the Washington court held that there was nothing in § 301 "limiting the substantive law to be applied," and the court accordingly proceeded to dispose of this litigation exclusively in terms of local contract law. The union insists that the case was one to be decided by reference to federal law, and that, under applicable principles of national labor law, the strike was not a violation of the collective bargaining contract. We hold that, in a case such as this, incompatible doctrines of local law must give way to principles of federal labor law. [Footnote 10] We Page 369 U. S. 103 further hold, however, that application of such principles to this case leads to affirmance of the judgment before us.It was apparently the theory of the Washington court that, although Textile Workers Union v. Lincoln Mills, 353 U. S. 448, requires the federal courts to fashion, from the policy of our national labor laws, a body of federal law for the enforcement of collective bargaining agreements, nonetheless, the courts of the States remain free to apply individualized local rules when called upon to enforce such agreements. This view cannot be accepted. The dimensions of § 301 require the conclusion that substantive principles of federal labor law must be paramount in the area covered by the statute. Comprehensiveness is inherent in the process by which the law is to be formulated under the mandate of Lincoln Mills, requiring issues raised in suits of a kind covered by § 301 to be decided according to the precepts of federal labor policy.More important, the subject matter of § 301(a) "is peculiarly one that calls for uniform law." Pennsylvania R. Co. v. Public Service Comm'n, 250 U. S. 566, 250 U. S. 569; see Cloverleaf Butter Co. v. Patterson, 315 U. S. 148, 315 U. S. 167-169. The possibility that individual contract terms might have different meanings under state and federal law would inevitably exert a disruptive influence upon both the negotiation and administration of collective agreements. Because neither party could be certain of the rights which it had obtained or conceded, the process of negotiating an agreement would be made immeasurably more difficult by the necessity of trying to formulate contract provisions in such a way as to contain the same meaning under two or more systems of law which might someday be invoked in enforcing the contract. Once the collective bargain was Page 369 U. S. 104 made, the possibility of conflicting substantive interpretation under competing legal systems would tend to stimulate and prolong disputes as to its interpretation. [Footnote 11] Indeed, the existence of possibly conflicting legal concepts might substantially impede the parties' willingness to agree to contract terms providing for final arbitral or judicial resolution of disputes.The importance of the area which would be affected by separate systems of substantive law makes the need for a single body of federal law particularly compelling. The ordering and adjusting of competing interests through a process of free and voluntary collective bargaining is the keystone of the federal scheme to promote industrial peace. State law which frustrates the effort of Congress to stimulate the smooth functioning of that process thus strikes at the very core of federal labor policy. With due regard to the many factors which bear upon competing state and federal interests in this area, California v. Zook, 336 U. S. 725, 336 U. S. 730-731; Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 331 U. S. 230-231, we cannot but conclude that, in enacting § 301, Congress intended doctrines of federal labor law uniformly to prevail over inconsistent local rules.Whether, as a matter of federal law, the strike which the union called was a violation of the collective bargaining contract is thus the ultimate issue which this case presents. It is argued that there could be no violation in the absence of a no-strike clause in the contract Page 369 U. S. 105 explicitly covering the subject of the dispute over which the strike was called. We disagree.The collective bargaining contract expressly imposed upon both parties the duty of submitting the dispute in question to final and binding arbitration. [Footnote 12] In a consistent course of decisions, the Courts of Appeals of at least five Federal Circuits have held that a strike to settle a dispute which a collective bargaining agreement provides shall be settled exclusively and finally by compulsory arbitration constitutes a violation of the agreement. [Footnote 13] The National Labor Relations Board has reached the same conclusion. W. L. Mead, Inc., 113 N.L.R.B. 1040. We approve that doctrine. [Footnote 14] To hold otherwise would obviously do violence to accepted principles of traditional contract law. Even more in point, a contrary view would be completely at odds with the basic policy of national labor legislation to promote the arbitral process as a substitute for economic warfare. See United Steelworkers v. Warrior & Gulf Nav. Co., 363 U. S. 574. Page 369 U. S. 106What has been said is not to suggest that a no-strike agreement is to be implied beyond the area which it has been agreed will be exclusively covered by compulsory terminal arbitration. Nor is it to suggest that there may not arise problems in specific cases as to whether compulsory and binding arbitration has been agreed upon, and, if so, as to what disputes have been made arbitrable. [Footnote 15] But no such problems are present in this case. The grievance over which the union struck was, as it concedes, one which it had expressly agreed to settle by submission to final and binding arbitration proceedings. The strike which it called was a violation of that contractual obligation.Affirmed

U.S. Supreme CourtTeamsters v. Lucas Flour Co., 369 U.S. 95 (1962)Local 174, Teamsters, Chauffeurs, Warehousemen& Helpers of America v. Lucas Flour Co.No. 50Argued November 7-8, 1961Decided March 5, 1962369 U.S. 95SyllabusA collective bargaining contract between an employer in a business affecting interstate commerce and a union of its employees reserved to the employer the right to discharge any employee for unsatisfactory work and provided for compulsory, final and binding settlement by arbitration of any dispute between the employer and any employee; but it did not contain an explicit no-strike clause applicable to such disputes. The employer discharged an employee for unsatisfactory work, and the union called a strike to force the employer to rehire him. The employer sued the union in a Washington State Court for damages for business losses caused by the strike. The trial court awarded a judgment in favor of the employer, and a Department of the Supreme Court of Washington affirmed. Without petitioning that Court for a rehearing en banc, the union petitioned this Court for certiorari, which was granted.Held:1. Under Washington law, the judgment below was a final judgment of the State's highest court, and this Court has jurisdiction of this case under 28 U.S.C. §1257. Gorman v. Washington University, 316 U. S. 98, distinguished. Pp. 369 U. S. 98-101.2. Section 301 (a) of the Labor Management Relations Act, 197, did not deprive the state courts of jurisdiction over this case. Charles Dowd Box Co. v. Courtney, 368 U. S. 502. P. 369 U. S. 101.3. In a case such as this, incompatible doctrines of local law must give way to principles of federal labor law. Pp. 369 U. S. 102-104.4. Under federal labor law, a strike to settle a dispute which a collective bargaining agreement provides shall be settled exclusively and finally by compulsory arbitration constitutes a violation of the agreement, even when the agreement does not contain an explicit no-strike clause. Pp. 369 U. S. 104-106.57 Wash. 2d 95, 356 P.2d 1, affirmed. Page 369 U. S. 96

1995_95-809

Richard P. Bress argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Days, Assistant Attorney General Argrett, Edwin S. Kneedler, Kenneth L. Greene, J. Davitt McAteer, Allen H. Feldman, and Edward D. Sieger.Theresa M. Traber argued the cause for respondent.With her on the brief was Bert Voorhees. *JUSTICE THOMAS delivered the opinion of the Court.In this case, we decide whether the payment of benefits pursuant to an early retirement program conditioned on the participants' release of employment-related claims constitutes a prohibited transaction under the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 829, as amended, 29 U. S. C. § 1001 et seq. We also determine whether the 1986 amendments to ERISA and the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, as amended, 29 U. S. C. § 621 et seq., forbidding agebased discrimination in pension plans apply retroactively.IRespondent Paul Spink was employed by petitioner Lockheed Corporation from 1939 until 1950, when he left to work*Briefs of amici curiae urging reversal were filed for the ERISA Industry Committee by Michael E. Horne and John M. Vine; for the Equal Employment Advisory Council by Douglas S. McDowell and Ellen Duffy McKay; and for the New England Legal Foundation by William J. Kilberg, Peter H. Turza, Paul Blankenstein, Mark Snyderman, and Stephen S.Ostrach.Briefs of amici curiae urging affirmance were filed for the American Association of Retired Persons by Cathy Ventrell-Monsees and Mary Ellen Signorille; for the Engineers and Scientists Guild, Lockheed Section, by Stuart Libicki; and for the National Employment Lawyers Association by Stephen R. Bruce, Ronald Dean, and Jeffrey Lewis.Briefs of amici curiae were filed for the American Academy of Actuaries et al. by Lauren M. Bloom; and for the Chamber of Commerce of the United States by Hollis T. Hurd, Stephen A. Bokat, and Robin S. Conrad.885for one of Lockheed's competitors. In 1979, Lockheed persuaded Spink to return. Spink was 61 years old when he resumed employment with Lockheed. At that time, the terms of the Lockheed Retirement Plan for Certain Salaried Individuals (Plan), a defined benefit plan, excluded from participation employees who were over the age of 60 when hired. This was expressly permitted by ERISA. See 29 U. S. C. § 1052(a)(2)(B) (1982 ed.).Congress subsequently passed the Omnibus Budget Reconciliation Act of 1986 (OBRA), Pub. L. 99-509, 100 Stat. 1874. Section 9203(a)(1) of OBRA, 100 Stat. 1979, repealed the age-based exclusion provision of ERISA, and the statute now flatly mandates that "[n]o pension plan may exclude from participation (on the basis of age) employees who have attained a specified age." 29 U. S. C. § 1052(a)(2). Sections 9201 and 9202 of OBRA, 100 Stat. 1973-1978, amended ERISA and the ADEA to prohibit age-based cessations of benefit accruals and age-based reductions in benefit accrual rates. See 29 U. S. C. §§ 1054(b)(1)(H)(i), 623(i)(1).In an effort to comply with these new laws, Lockheed ceased its prior practice of age-based exclusion from the Plan, effective December 25, 1988. As of that date, all employees, including Spink, who had previously been ineligible to participate in the Plan due to their age at the time of hiring became members of the Plan. Lockheed made clear, however, that it would not credit those employees for years of service rendered before they became members.When later faced with the need to streamline its operations, Lockheed amended the Plan to provide financial incentives for certain employees to retire early. Lockheed established two programs, both of which offered increased pension benefits to employees who would retire early, payable out of the Plan's surplus assets. Both programs required as a condition of the receipt of benefits that participants release any employment-related claims they might have against Lockheed. Though Spink was eligible for one of the pro-886grams, he declined to participate because he did not wish to waive any ADEA or ERISA claims. He then retired, without earning any extra benefits for doing so.Spink brought this suit, in his individual capacity and on behalf of others similarly situated, against Lockheed and several of its directors and officers. Among other things, the complaint alleged that Lockheed and the members of the board of directors violated ERISA's duty of care and prohibited transaction provisions, 29 U. S. C. §§ 1l04(a), 1l06(a), by amending the Plan to create the retirement programs. Relatedly, the complaint alleged that the members of Lockheed's Retirement Committee, who implemented the Plan as amended by the board, violated those same parts of ERISA. The complaint also asserted that the OBRA amendments to ERISA and the ADEA required Lockheed to count Spink's pre-1988 service years toward his accrued pension benefits. For these alleged ERISA violations, Spink sought monetary, declaratory, and injunctive relief pursuant to §§ 502(a)(2) and (3) of ERISA's civil enforcement provisions, 29 U. S. C. §§ 1132(a)(2), (3). Lockheed moved to dismiss the complaint for failure to state a claim, and the District Court granted the motion.The Court of Appeals for the Ninth Circuit reversed in relevant part. 60 F.3d 616 (1995). The Court of Appeals held that the amendments to the Plan were unlawful under ERISA §406(a)(1)(D), 29 U. S. C. § 1l06(a)(1)(D), which prohibits a fiduciary from causing a plan to engage in a transaction that transfers plan assets to a party in interest or involves the use of plan assets for the benefit of a party in interest. The court reasoned that because the amendments offered increased benefits in exchange for a release of employment claims, they constituted a use of Plan assets to "purchase" a significant benefit for Lockheed. 60 F. 3d, at 624. Though the court found a violation of § 406(a)(1)(D), it decided that there was no need to address Lockheed's status as a fiduciary. Id., at 623, n. 5. In addition, the Court of887Appeals agreed with Spink that Lockheed had violated the OBRA amendments by refusing to include Spink's service years prior to 1988 in determining his benefits. In so holding, the court found that the OBRA amendments apply retroactively. See id., at 620, n. 1. We issued a writ of certiorari, 516 U. S. 1087 (1996), and now reverse.IINothing in ERISA requires employers to establish employee benefits plans. Nor does ERISA mandate what kind of benefits employers must provide if they choose to have such a plan. Shaw v. Delta Air Lines, Inc., 463 U. S. 85, 91 (1983); Alessi v. Raybestos-Manhattan, Inc., 451 U. S. 504, 511 (1981). ERISA does, however, seek to ensure that employees will not be left emptyhanded once employers have guaranteed them certain benefits. As we said in Nachman Corp. v. Pension Benefit Guaranty Corporation, 446 U. S. 359 (1980), when Congress enacted ERISA it "wanted to ... mak[e] sure that if a worker has been promised a defined pension benefit upon retirement-and if he has fulfilled whatever conditions are required to obtain a vested benefithe actually will receive it." Id., at 375. Accordingly, ERISA tries to "make as certain as possible that pension fund assets [will] be adequate" to meet expected benefits payments. Ibid.To increase the chances that employers will be able to honor their benefits commitments-that is, to guard against the possibility of bankrupt pension funds-Congress incorporated several key measures into ERISA. Section 302 of ERISA sets minimum annual funding levels for all covered plans, see 29 U. S. C. §§ 1082(a), 1082(b), and creates tax liens in favor of such plans when those funding levels are not met, see § 1082(f). Sections 404 and 409 of ERISA impose respectively a duty of care with respect to the management of existing trust funds, along with liability for breach of that duty, upon plan fiduciaries. See §§ 1104(a), 1109(a). Fi-888nally, § 406 of ERISA prohibits fiduciaries from involving the plan and its assets in certain kinds of business deals. See § 1106. It is this last feature of ERISA that is at issue today.Congress enacted § 406 "to bar categorically a transaction that [is] likely to injure the pension plan." Commissioner v. Keystone Consolo Industries, Inc., 508 U. S. 152, 160 (1993). That section mandates, in relevant part, that "[a] fiduciary with respect to a plan shall not cause the plan to engage in a transaction, if he knows or should know that such transaction constitutes a direct or indirect ... transfer to, or use by or for the benefit of a party in interest, of any assets of the plan." 29 U. S. C. § 1106(a)(1)(D).1 The question here is whether this provision of ERISA prevents an employer from conditioning the receipt of early retirement benefits upon the participants' waiver of employment claims. For the following reasons, we hold that it does not.IIISection 406(a)(1) regulates the conduct of plan fiduciaries, placing certain transactions outside the scope of their lawful authority. When a fiduciary violates the rules set forth in § 406(a)(1), § 409 of ERISA renders him personally liable for any losses incurred by the plan, any ill-gotten profits, and other equitable and remedial relief deemed appropriate by the court. See 29 U. S. C. § 1109(a). But in order to sustain an alleged transgression of § 406(a), a plaintiff must show that a fiduciary caused the plan to engage in the allegedly unlawful transaction.2 Unless a plaintiff can make that1 Section 408 enumerates specific exceptions to the prohibitions in § 406.See 29 U. S. C. § 1l08(b). Lockheed does not argue that any of these exceptions pertain to this case.2 ERISA § 3(21)(A) provides: "[A] person is a fiduciary with respect to a plan to the extent (i) he exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets, (ii) he renders investment advice for a fee or other compensation, direct or889showing, there can be no violation of § 406(a)(1) to warrant relief under the enforcement provisions. Cf. Peacock v. Thomas, 516 U. S. 349, 353 (1996) ("Section 502(a)(3) 'does not, after all, authorize "appropriate equitable relief" at large, but only "appropriate equitable relief" for the purpose of "redress[ing any] violations or ... enforc[ing] any provisions" of ERISA''') (quoting Mertens v. Hewitt Associates, 508 U. S. 248, 253 (1993)). The Court of Appeals erred by not asking whether fiduciary status existed in this case before it found a violation of §406(a)(1)(D).3AWe first address the allegation in Spink's complaint that Lockheed and the board of directors breached their fiduciaryindirect, with respect to any moneys or other property of such plan, or has any authority or responsibility to do so, or (iii) he has any discretionary authority or discretionary responsibility in the administration of such plan." 29 U. S. C. § 1002(21)(A).3 Instead of pursuing this inquiry, the Court of Appeals found that Lockheed was a "party in interest" under § 3(14)(C), and asserted that "a party in interest who benefitted from an impermissible transaction can be held liable under ERISA." 60 F.3d 616, 623 (CA9 1995). For that same proposition, several Courts of Appeals have relied on statements in Mertens v. Hewitt Associates, 508 U. S. 248 (1993), that "ERISA contains various provisions that can be read as imposing obligations upon nonfiduciaries," id., at 253-254; see also id., at 254, n. 4 (citing § 406(a)), and that "[p]rofessional service providers ... must disgorge assets and profits obtained through participation as parties-in-interest in transactions prohibited by §406," id., at 262. See, e. g., Reich v. Stangl, 73 F.3d 1027, 1031-1032 (CA1O 1996), cert. pending, No. 95-1631; Landwehr v. DuPree, 72 F. 3d 726,733-734 (CA9 1995); Reich v. Compton, 57 F.3d 270, 285 (CA3 1995). Insofar as they apply to § 406(a), these statements in Mertens (which were in any event dicta, since § 406(a) was not at issue) suggest liability for parties in interest only when a violation of § 406(a) has been establishedwhich, as we have discussed, requires a showing that a fiduciary caused the plan to engage in the transaction in question. The Court of Appeals thus was not necessarily wrong in saying that "a party in interest who benefitted from an impermissible transaction can be held liable under ERISA" (emphasis added); but the only transactions rendered impermissible by § 406(a) are transactions caused by fiduciaries.890duties when they adopted the amendments establishing the early retirement programs. Plan sponsors who alter the terms of a plan do not fall into the category of fiduciaries. As we said with respect to the amendment of welfare benefit plans in Curtiss-Wright Corp. v. Schoonejongen, 514 U. S. 73 (1995), "[e]mployers or other plan sponsors are generally free under ERISA, for any reason at any time, to adopt, modify, or terminate welfare plans." Id., at 78 (citing Adams v. Avondale Industries, Inc., 905 F.2d 943, 947 (CA6 1990)). When employers undertake those actions, they do not act as fiduciaries, 514 U. S., at 78, but are analogous to the settlors of a trust, see Johnson v. Georgia-Pacific Corp., 19 F.3d 1184, 1188 (CA7 1994).This rule is rooted in the text of ERISA's definition of fiduciary. See 29 U. S. C. § 1002(21)(A) (quoted n. 2, supra). As the Second Circuit has observed, "only when fulfilling certain defined functions, including the exercise of discretionary authority or control over plan management or administration," does a person become a fiduciary under § 3(21)(A). Siskind v. Sperry Retirement Program, Unisys, 47 F.3d 498, 505 (1995). "[B]ecause [the] defined functions [in the definition of fiduciary] do not include plan design, an employer may decide to amend an employee benefit plan without being subject to fiduciary review." Ibid. We recently recognized this very point, noting that "it may be true that amending or terminating a plan ... cannot be an act of plan 'management' or 'administration.''' Varity Corp. v. Howe, 516 U. S. 489, 505 (1996). As noted above, we in fact said as much in Curtiss- Wright, see 514 U. S., at 78, at least with respect to welfare benefit plans.We see no reason why the rule of Curtiss-Wright should not be extended to pension benefit plans. Indeed, there are compelling reasons to apply the same rule to cases involving both kinds of plans, as most Courts of Appeals have891done.4 The definition of fiduciary makes no distinction between persons exercising authority over welfare benefit plans and those exercising authority over pension plans. It speaks simply of a "fiduciary with respect to a plan," 29 U. S. C. § 1002(21)(A), and of "management" and "administration" of "such plan," ibid. And ERISA defines a "plan" as being either a welfare or pension plan, or both. See § 1002(3). Likewise, the fiduciary duty provisions of ERISA are phrased in general terms and apply with equal force to welfare and pension plans. See, e. g., § 1l04(a) (specifying duties of a "fiduciary ... with respect to a plan"). See also Shaw v. Delta Air Lines, Inc., 463 U. S., at 91 (ERISA "sets various uniform standards, including rules concerning ... fiduciary responsibility, for both pension and welfare plans"). Given ERISA's definition of fiduciary and the applicability of the duties that attend that status, we think that the rules regarding fiduciary capacity-including the settlor-fiduciary distinction-should apply to pension and welfare plans alike.Lockheed acted not as a fiduciary but as a settlor when it amended the terms of the Plan to include the retirement programs. Thus, § 406(a)'s requirement of fiduciary status is not met. While other portions of ERISA govern plan amendments, see, e. g., 29 U. S. C. § 1054(g) (amendment generally may not decrease accrued benefits); § 1085b (if adoption of an amendment results in underfunding of a defined benefit plan, the sponsor must post security for the amount of the deficiency), the act of amending a pension plan does not trigger ERISA's fiduciary provisions.4 See, e. g., Siskind v. Sperry Retirement Program, Unisys, 47 F.3d 498, 505 (CA2 1995); Averhart v. US WEST Management Pension Plan, 46 F.3d 1480, 1488 (CAlO 1994); Fletcher v. Kroger Co., 942 F.2d 1137, 11391140 (CA7 1991); Hozier v. Midwest Fasteners, Inc., 908 F.2d 1155, 11601162 (CA3 1990) (listing cases); Sutton v. Weirton Steel Div. of Nat. Steel Corp., 724 F.2d 406, 411 (CA4 1983), cert. denied, 467 U. S. 1205 (1984).892BSpink also alleged that the members of Lockheed's Retirement Committee who implemented the amended Plan violated §406(a)(1)(D). As with the question whether Lockheed and the board members can be held liable under ERISA's fiduciary rules, the Court of Appeals erred in holding that the Retirement Committee members violated the prohibited transaction section of ERISA without making the requisite finding of fiduciary status. It is not necessary for us to decide the question whether the Retirement Committee members acted as fiduciaries when they paid out benefits according to the terms of the amended Plan, however, because we do not think that they engaged in any conduct prohibited by § 406(a)(1)(D).The "transaction" in which fiduciaries may not cause a plan to engage is one that "constitutes a direct or indirect ... transfer to, or use by or for the benefit of a party in interest, of any assets of the plan." 29 U. S. C. § 1l06(a)(1)(D). Spink reads § 406(a)(1)(D) to apply in cases where the benefit received by the party in interest-in this case, the employer-is not merely a "natural inciden[t] of the administration of pension plans." Brief for Respondent 10. Lockheed, on the other hand, maintains that a plan administrator's payment of benefits to plan participants and beneficiaries pursuant to the terms of an otherwise lawful plan 5 is wholly outside the scope of § 406(a)(1)(D). See Reply Brief for Petitioners 10. We agree with Lockheed.Section 406(a)(1)(D) does not in direct terms include the payment of benefits by a plan administrator. And the surrounding provisions suggest that the payment of benefits is5 As Lockheed notes, see Brief for Petitioners 13; Reply Brief for Petitioners 7, n. 4, there is no claim in this case that the amendments resulted in any violation of the participation, funding, or vesting requirements of ERISA. See 29 U. S. C. §§ 1051-1061 (participation and vesting); §§ 10811086 (funding).893in fact not a "transaction" in the sense that Congress used that term in § 406(a). Section 406(a) prohibits fiduciaries from engaging the plan in the "sale," "exchange," or "leasing" of property, 29 U. S. C. § 1l06(a)(1)(A); the "lending of money" or "extension of credit," § 1l06(a)(1)(B); the "furnishing of goods, services, or facilities," § 1l06(a)(1)(C); and the "acquisition ... of any employer security or employer real property," § 1l06(a)(1)(E), with a party in interest. See also § 1l08(b) (listing similar types of "transactions"). These are commercial bargains that present a special risk of plan underfunding because they are struck with plan insiders, presumably not at arm's length. See Commissioner v. Keystone Consolo Industries, Inc., 508 U. S., at 160. What the "transactions" identified in § 406(a) thus have in common is that they generally involve uses of plan assets that are potentially harmful to the plan. Cf. id., at 160-161 (reasoning that a transfer of unencumbered property to the plan by the employer for the purpose of applying it toward the employer's funding obligation fell within § 406(a)(1)'s companion tax provision, 26 U. S. C. § 4975, because it could "jeopardize the ability of the plan to pay promised benefits"). The payment of benefits conditioned on performance by plan participants cannot reasonably be said to share that characteristic.According to Spink and the Court of Appeals, however, Lockheed's early retirement programs were prohibited transactions within the meaning of § 406(a)(1)(D) because the required release of employment-related claims by participants created a "significant benefit" for Lockheed. 60 F. 3d, at 624. Spink concedes, however, that among the "incidental" and thus legitimate benefits that a plan sponsor may receive from the operation of a pension plan are attracting and retaining employees, paying deferred compensation, settling or avoiding strikes, providing increased compensation without increasing wages, increasing employee turnover, and reducing the likelihood of lawsuits by encouraging employees894who would otherwise have been laid off to depart voluntarily. Brief for Respondent 11.We do not see how obtaining waivers of employmentrelated claims can meaningfully be distinguished from these admittedly permissible objectives. Each involves, at bottom, a quid pro quo between the plan sponsor and the participant: that is, the employer promises to pay increased benefits in exchange for the performance of some condition by the employee. By Spink's admission, the employer can ask the employee to continue to work for the employer, to cross a picket line, or to retire early. The execution of a release of claims against the employer is functionally no different; like these other conditions, it is an act that the employee performs for the employer in return for benefits. Certainly, there is no basis in § 406(a)(1)(D) for distinguishing a valid from an invalid quid pro quo. Section 406(a)(1)(D) simply does not address what an employer can and cannot ask an employee to do in return for benefits. See generally Alessi v. Raybestos-Manhattan, Inc., 451 U. S., at 511 (ERISA "leaves thee] question" of the content of benefits "to the private parties creating the plan .... [T]he private parties, not the Government, control the level of benefits").6 Furthermore, if an employer can avoid litigation that might result from laying off an employee by enticing him to retire early, as Spink concedes, it stands to reason that the employer can also protect itself from suits arising out of6 Indeed, federal law expressly approves the use of early retirement incentives conditioned upon the release of claims. The Older Workers Benefit Protection Act, Pub. L. 101-433, 104 Stat. 983 (1990), establishes requirements for the enforceability of employee waivers of ADEA claims made in exchange for early retirement benefits. See 29 U. S. C. § 626(f). Of course, the enforceability of a particular waiver under this and other applicable laws, including state law, is a separate issue from the question whether such an arrangement violates ERISA's prohibited transaction rules. But absent clearer indication than what we have in § 406(a)(1)(D), we would be reluctant to infer that ERISA bars conduct affirmatively sanctioned by other federal statutes.895that retirement by asking the employee to release any employment-related claims he may have.7In short, whatever the precise boundaries of the prohibition in § 406(a)(1)(D), there is one use of plan assets that it cannot logically encompass: a quid pro quo between the employer and plan participants in which the plan pays out benefits to the participants pursuant to its terms. When § 406(a)(1)(D) is read in the context of the other prohibited transaction provisions, it becomes clear that the payment of benefits in exchange for the performance of some condition by the employee is not a "transaction" within the meaning of § 406(a)(1). A standard that allows some benefits agreements but not others, as Spink suggests, lacks a basis in § 406(a)(1)(D); it also would provide little guidance to lower courts and those who must comply with ERISA. We thus hold that the payment of benefits pursuant to an amended plan, regardless of what the plan requires of the employee in return for those benefits, does not constitute a prohibited transaction.87 Spink's amicus the United States suggests that § 406(a)(1)(D) is not violated so long as the employer provides benefits as compensation for the employee's labor, not for other things such as a release of claims. See Brief for United States as Amicus Curiae 15-16. But the Government contradicts its own rule with the examples it gives of lawful plans. For instance, the Government recognizes that "[a]n employer may provide increased pension benefits as an incentive for early retirement." Id., at 20. While retirement benefits themselves may be defined as deferred wages, an increase in retirement benefits as part of an early retirement plan does not compensate the employee so much for services rendered as for the distinct act of leaving the company sooner than planned. The standard offered by the Government is thus of little help in identifying transactions prohibited by § 406(a)(1)(D).8 If the benefits payment were merely a sham transaction, meant to disguise an otherwise unlawful transfer of assets to a party in interest, or involved a kickback scheme, that might present a different question from the one before us. Spink does not suggest that Lockheed's payment was a cover for an illegal scheme, only that payment of the benefits conditioned on the release was itself violative of § 406(a)(1)(D).896IVFinally, we address whether §§ 9201 and 9202(a) of OBRA, which amended respectively the ADEA and ERISA to prohibit age-based benefit accrual rules, apply retroactively.9 Two Terms ago, we set forth the proper approach for determining the retroactive effect of a statute in Landgraf v. USI Film Products, 511 U. S. 244 (1994). We stated that "[w]hen a case implicates a federal statute enacted after the events in suit, the court's first task is to determine whether Congress has expressly prescribed the statute's proper reach." Id., at 280. Thus, we must determine whether Congress has plainly delineated the temporal scope of the OBRA amendments to ERISA and the ADEA.Section 9204(a)(1) of OBRA, 100 Stat. 1979, expressly provides that "[t]he amendments made by sections 9201 and 9202 shall apply only with respect to plan years beginning on or after January 1, 1988, and only to employees who have 1 hour of service in any plan year to which such amendments apply." 29 U. S. C. § 623 note. This language compels the conclusion that the amendments are prospective. For plan years that began on or after January 1, 1988, age-based accrual rules are unlawful under the amendments; further, only employees who have one hour of service in such a plan year are entitled to the protection of the amendments. But for plan years prior to the effective date, employers cannot be held liable for using age-based accrual rules. Where, as here, the temporal effect of a statute is manifest on its face, "there is no need to resort to judicial default rules," Land-9 Section 9203(a)(1) of OBRA, amending ERISA to prevent the exclusion of employees of a certain age from plan participation, applies "only with respect to plan years beginning on or after January 1, 1988, and only with respect to service performed on or after such date." OBRA § 9204(b), 100 Stat. 1980. The Court of Appeals acknowledged that Lockheed fully complied with that amendment by admitting Spink as a member of the Plan as of December 25, 1988, the first day of Lockheed's 1988 plan year.897graf v. USI Film Products, supra, at 280, and inquiry is at an end.Notwithstanding the clarity of § 9204(a)(1), the Court of Appeals believed that the text of §§ 9201 and 9202(a) require retroactive application of the benefit accrual rules. To deny an employee credit for service years during which he was excluded from the plan based on age, even though that exclusion was lawful at the time, the Court of Appeals reasoned, is to reduce the rate of benefits accrual for that employee.1o 60 F. 3d, at 620. When Congress includes a provision that specifically addresses the temporal effect of a statute, that provision trumps any general inferences that might be drawn from the substantive provisions of the statute. See generally Morales v. Trans World Airlines, Inc., 504 U. S. 374, 384 (1992); Fourco Glass Co. v. Transmirra Products Corp., 353 U. S. 222, 228-229 (1957). Even if it were proper to disregard the express time limitations in § 9204(a)(1) in favor of more general language, §§ 9201 and 9202(a) cannot bear the weight of the Court of Appeals' construction. A reduction in total benefits due is not the same thing as a reduction in the rate of benefit accrual; the former is the final outcome of the calculation, whereas the latter is one of the factors in the equation.***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, 1995SyllabusLOCKHEED CORP. ET AL. v. SPINKCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITNo. 95-809. Argued April 22, 1996-Decided June 10, 1996Because respondent Spink was 61 when petitioner Lockheed Corporation reemployed him in 1979, he was excluded from participation in Lockheed's retirement plan (Plan), as was then permitted by the Employee Retirement Income Security Act of 1974 (ERISA). Section 9203(a)(1) of the Omnibus Budget Reconciliation Act of 1986 (OBRA) repealed ERISA's age-based exclusion provision, and §§ 9201 and 9202 amended ERISA and the Age Discrimination in Employment Act of 1967 (ADEA), respectively, to prohibit age-based benefit accrual rules. To comply with OBRA, Lockheed made Spink and other previously excluded employees Plan members, but made clear that they would not receive credit for their pre-1988 service years. Lockheed subsequently added to the Plan two programs offering increased pension benefits to employees who would retire early in exchange for their waiver of any employment claims against Lockheed. Not wishing to waive any ADEA or ERISA claims, Spink declined to participate and retired without earning the extra benefits. He then filed suit, alleging among other things that Lockheed and petitioner board of directors members violated ERISA by amending the Plan to create the retirement programs, that petitioner Retirement Committee members violated ERISA by implementing the amended Plan, and that the OBRA amendments to ERISA and the ADEA required that Spink's pre-1988 service years be counted toward his benefits. The District Court dismissed the complaint for failure to state a claim, but the Court of Appeals reversed in relevant part. In finding the Plan amendments unlawful under ERISA § 406(a)(1)(D)-which prohibits a fiduciary from causing a plan to engage in a transaction that transfers plan assets to, or involves the use of plan assets for the benefit of, a party in interest-the court decided that there was no need to address Lockheed's status as a fiduciary. It also found that Lockheed's refusal to credit Spink with his pre-1988 service years violated the OBRA amendments, which the court decided applied retroactively.Held:1. ERISA § 406 does not prevent an employer from conditioning the receipt of early retirement benefits upon plan participants' waiver of employment claims. Pp. 887-895.883(a) Unless a plaintiff shows that a fiduciary caused the plan to engage in the allegedly unlawful transaction, there can be no § 406(a)(1) violation warranting relief. Cf. Peacock v. Thomas, 516 U. S. 349, 353. Thus, the Court of Appeals erred by not asking whether fiduciary status existed in this case before finding a § 406(a)(1)(D) violation. Pp.888-889.(b) Lockheed and the board of directors, as plan sponsors, were not acting as fiduciaries when they amended the Plan. Given ERISA's definition of fiduciary and the applicability of the duties attending that status, the rule that this Court announced with respect to the amendment of welfare benefit plans in Curtiss-Wright Corp. v. Schoonejongen, 514 U. S. 73, applies equally to the amendment of pension plans. Thus, when employers or other plan sponsors adopt, modify, or terminate pension plans, they do not act as fiduciaries, id., at 78, but are analogous to settlors of a trust. Pp. 889-891.(c) It is not necessary to decide whether the Retirement Committee members acted as fiduciaries, because their payment of benefits pursuant to the terms of an otherwise lawful plan was not a "transaction" prohibited by § 406(a)(1)(D). That section does not in direct terms include an employer's payment of benefits. And the "transactions" prohibited by other provisions of § 406(a) generally involve uses of plan assets that are potentially harmful to the plan. The payment of benefits conditioned on performance by plan participants cannot reasonably be said to share that characteristic. Pp. 892-895.2. OBRA §§ 9201 and 9202(a) do not apply retroactively to require Lockheed to use pre-1988 service years in calculating Spink's benefits. Congress expressly provided, in OBRA § 9204(a)(1), that the amendments to ERISA and the ADEA would be effective with respect to plan years beginning on or after January 1, 1988. Since the amendments' temporal effect is manifest on the statute's face, "there is no need to resort to judicial default rules," Landgraf v. USI Film Products, 511 U. S. 244, 280, and inquiry is at an end. Pp. 896-897.60 F.3d 616, reversed and remanded.THOMAS, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and STEVENS, O'CONNOR, SCALIA, KENNEDY, and GINSBURG, JJ., joined, and in which SOUTER and BREYER, JJ., joined as to all but Part III-B. BREYER, J., filed an opinion concurring in part and dissenting in part, in which SOUTER, J., joined, post, p. 898.Gordon E. Kirscher argued the cause for petitioners.With him on the briefs were David E. Gordon, Kenneth E. Johnson, Kenneth S. Geller, and Ralph A. Hurvitz.884Full Text of Opinion

1965_970

MR. JUSTICE CLARK delivered the opinion of the Court.At issue here is the power of the Court of Appeals under the All Writs Act, 28 U.S.C. § 1651(a) (1964 ed.), to temporarily enjoin the consummation of a merger that is under attack before the Federal Trade Commission as violative of § 7 of the Clayton Act, as amended, 64 Stat. 1125, 15 U.S.C. § 18 (1964 ed.). This case arose on the application of the Commission for a temporary restraining order and a preliminary injunction against respondents Dean Foods Company and Bowman Dairy Company to maintain the status quo until the Commission determined the legality of their merger. The Commission alleged that it had issued a complaint against respondents under § 7 of the Clayton Act and § 5 of the Federal Trade Commission Act, 38 Stat. 719, as amended, 52 Stat. 111, 15 U.S.C. § 45 (1964 ed.), and that, from the facts underlying the complaint, "it is probable that the Federal Trade Commission will enter an order finding a violation of these laws." The petition stated that there was a "compelling" need for preliminary relief, since the"acquisition itself will split Bowman in two -- Dean will acquire fixed assets, receivables and good will; Bowman will retain all cash, government and other marketable securities, and some real estate investments"for distribution to its stockholders. [Footnote 1] In addition, it was alleged that Dean planned to dispose of most of Bowman's retail milk routes, certain of its plants and equipment, and to consolidate the remaining assets. The Commission thus argued that, if the merger were allowed to be completed, "Bowman as an entity will no longer exist," and that it "will be extremely difficult and very probably impossible'" Page 384 U. S. 600 to restore Bowman as "a viable independent" company if the merger were subsequently ruled illegal. In other words, consummation of the agreement would"prevent the Commission from devising, or render it extremely difficult for the Commission to devise, any effective remedy after its decision on the merits."As grounds for issuance of an extraordinary writ, the Commission asserted that the Court of Appeals"will, in effect, be deprived of its appellate jurisdiction [over final Commission orders] and of the opportunity to enter a meaningful final order of its own in respect to this acquisition, since the res in custodia legis -- Bowman -- will have vanished."The Court of Appeals entered a temporary restraining order against respondents, as prayed. On the hearing for a preliminary injunction, however, it dissolved the temporary restraining order and dismissed the petition for the reasons that"no cease and desist order has been entered by the Commission relative to the subject matter in the case at bar and . . . we now hold that the Commission did not have authority to institute this proceeding in this court. . . ."In its final judgment, the Court of Appeals supported its refusal to grant relief at the request of the Commission by reference to the fact that:"in the 84th Congress and in the 89th Congress, bills sponsored by the said Commission were introduced, which bills, if enacted into law, would have conferred upon the Commission such authority as it is attempting to exercise in the case now before this court, but that said measures were not enacted into law, and Congress has not provided otherwise for bestowing this authority upon said Commission."356 F.2d 481, 482.A few hours after the Court of Appeals entered its order on January 19, 1966, the contract was closed and Dean acquired legal title to Bowman's operating assets. Page 384 U. S. 601 Upon application by the Solicitor General on behalf of the Commission, Mr. Justice Clark, after consulting the other members of this Court, entered a preliminary injunction on January 24, 1966, restraining respondents from making any material changes with respect to Bowman's corporate structure or the assets purchased. This order provided that Dean might sell Bowman's retail home delivery routes upon terms and conditions acceptable to the Commission, but that any milk supplied by Dean to the purchasers of the routes must continue to be delivered under the Bowman label and from former Bowman plants. We granted certiorari on February 18, 1966, 383 U.S. 901, and expedited consideration of this case. We conclude that the Court of Appeals erred, and reverse its judgment.ISince the case comes to us from a dismissal on jurisdictional grounds, we must take the allegations of the Commission's application for a preliminary injunction as true. We need not detail the facts further than to say that Dean and Bowman were substantial competitors in the sale of packaged milk in the Chicago area, one of the largest markets in the United States for packaged milk. On November 2, 1965, attorneys for Dean and Bowman met with representatives of the Commission to discuss a proposal by Dean to purchase all of Bowman's plants and equipment, the Bowman name, all customer and supplier lists, together with the benefit of their relationships and various other assets, all of which were situated in the Chicago area. Bowman would consequently cease doing a dairy business there. It was emphasized that the inquiry was merely to ascertain the views of the staff of the Commission, and not to secure a formal advisory opinion. After investigation, on December 3, 1965, the Commission's staff advised Dean's counsel that it believed the acquisition would raise serious questions under the Page 384 U. S. 602 antitrust laws, and that, on the basis of existing information, the staff would recommend that the Commission issue a complaint against the acquisition if consummated. After further meetings, Dean's counsel informed the Commission's staff on December 14, 1965, that the agreement had been signed. A week later, the Commission issued a formal complaint charging that the agreement violated § 7 of the Clayton Act and § 5 of the Federal Trade Commission Act.It appears that, at the time of the merger, Dean was the third or fourth largest distributor of packaged milk in the Chicago area; Bowman was at least the second largest in that market, and together they enjoyed approximately 23% of the sales of packaged milk in the same area, while the four largest dairy companies had a 43% share thereof. Affidavits attached to the Commission's application alleged that, between 1954 and 1965, the number of packaged milk sellers in the Chicago market had declined from 107 to 57, and that, in the four months prior to the filing of the complaint, four more firms had been eliminated by acquisitions. From these statistics, it was concluded that the effect of Dean's acquisition of Bowman would be to substantially lessen competition. We place in the margin the Commission's summation of its complaint. [Footnote 2] Page 384 U. S. 603IIThe All Writs Act, 28 U.S.C. § 1651(a), empowers the federal courts to "issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." The exercise of this power "is in the nature of appellate jurisdiction" where directed to an inferior court, Ex parte Crane, 5 Pet. 190, 30 U. S. 193 (1832) (Marshall, C.J.), and extends to the potential jurisdiction of the appellate court where an appeal is not then pending but may be later perfected. Cf. 32 U. S. 7 Pet. 634 (1833) (Marshall, C.J.). These holdings by Chief Justice Marshall are elaborated in a long line of cases, including McClellan v. Carland, 217 U. S. 268 (1910), where Mr. Justice Day held:"[w]e think it the true rule that where a case is within the appellate jurisdiction of the higher court a writ . . . may issue in aid of the appellate jurisdiction which might otherwise be defeated. . . ."At 217 U. S. 280. And in Roche v. Evaporated Milk Assn., 319 U. S. 21 (1943), Chief Justice Stone stated that the authority of the appellate court"is not confined to the issuance of writs in aid of a jurisdiction already acquired by appeal, but extends to those cases which are within its appellate jurisdiction although no appeal has been perfected. "Page 384 U. S. 604At 319 U. S. 25. Likewise, decisions of this Court"have recognized a limited judicial power to preserve the court's jurisdiction or maintain the status quo by injunction pending review of an agency's action through the prescribed statutory channels. . . . Such power has been deemed merely incidental to the courts' jurisdiction to review final agency action. . . ."Arrow Transp. Co. v. Southern R. Co., 372 U. S. 658, 372 U. S. 671, n. 22 (1963). There, the Court cited such authority as Scripps-Howard Radio, Inc. v. Federal Communications Comm'n, 316 U. S. 4 (1942); West India Fruit & S.S. Co. v. Seatrain Lines, Inc., 170 F.2d 775 (C.A.2d Cir. 1948); and Board of Governors of Federal Reserve System v. Transamerica Corp., 184 F.2d 311 (C.A.9th Cir.), cert. denied, 340 U.S. 883 (1950).Section 11(c) of the Clayton Act, as amended, 73 Stat. 243, 15 U.S.C. § 21(c), gives exclusive jurisdiction to review final orders by the Commission against illegal mergers, on application of "[a]ny person required by such order . . . to cease and desist from any such violation," to the courts of appeals "for any circuit within which such violation occurred or within which such person resides or carries on business." This grant includes the traditional power to issue injunctions to preserve the status quo while administrative proceedings are in progress and prevent impairment of the effective exercise of appellate jurisdiction. Cf. Continental Ill. Nat. Bank & Trust Co. of Chicago v. Chicago, R.I. & P. R. Co., 294 U. S. 648, 294 U. S. 675 (1935). A recent case involving a similar statutory proceeding is dispositive of this issue. Whitney Nat. Bank v. Bank of New Orleans, 379 U. S. 411 (1965), raised the question whether holding companies were "lawfully entitled" to operate subsidiary banks within Louisiana, a question we held should be determined in the first instance by the Federal Reserve Board. We further concluded that the Board should reconsider its initial approval of such a plan in light of Page 384 U. S. 605 an intervening Louisiana statute, and so gave the parties, who had sought review of the Board's order before the Court of Appeals for the Fifth Circuit, an opportunity to move that the case be remanded to the Board. It was noted that the Court of Appeals had authority "to issue such orders as will protect its jurisdiction pending final determination of the matter," at 379 U. S. 415, and that § 1651(a) empowered it to stay "the order of approval of the Federal Reserve Board pending final disposition of the review proceeding." At 379 U. S. 425. In response to the argument that the stay would not be sufficient because the Comptroller of Currency nonetheless intended to issue a certificate to the bank, we stated that, if"the Court of Appeals should find it necessary to take direct action to maintain the status quo and prevent the opening of the bank, it has ample power to do so"by an injunction against the applicants before the Federal Reserve Board themselves. At 379 U. S. 426. Such action would be analogous to the relief requested here by the Commission. [Footnote 3]These decisions furnish ample precedent to support jurisdiction of the Court of Appeals to issue a preliminary injunction preventing the consummation of this agreement upon a showing that an effective remedial order, once the merger was implemented, would otherwise be virtually impossible, thus rendering the enforcement of any final decree of divestiture futile.IIIDean and Bowman insist, however, that as a creature of statute the Commission may exercise only those functions delegated to it by Congress, and that Congress has Page 384 U. S. 606 failed to give the Commission express statutory authority to request preliminary relief under the All Writs Act. [Footnote 4] But the Commission is a governmental agency to which Congress has entrusted, inter alia, the enforcement of the Clayton Act, granting it the power to order divestiture in appropriate cases. At the same time, Congress has given the courts of appeals jurisdiction to review final Commission action. It would stultify congressional purpose to say that the Commission did not have the incidental power to ask the courts of appeals to exercise their authority derived from the All Writs Act. [Footnote 5] Indeed, the opinions Page 384 U. S. 607 in Arrow Transportation Co. and Whitney Nat. Bank necessarily recognized the standing of administrative agencies to seek such preliminary relief to ensure effective judicial review. Both decisions referred to Board of Governors v. Transamerica Corp., supra, where the Court of Appeals stayed a merger on application by the Federal Reserve Board. See also Public Utilities Comm'n v. Capital Transit Co., 94 U.S.App.D.C. 140, 214 F.2d 242 (1954), and West India Fruit & S.S. Co. v. Seatrain Lines, Inc., 170 F.2d 775, 779 (C.A.2d Cir. 1948). There is no explicit statutory authority for the Commission to appear in judicial review proceedings, but no one has contended it cannot appear in the courts of appeals to defend its orders. Nor has it ever been asserted that the Commission could not bring contempt actions in the appropriate court of appeals when the court's enforcement orders were violated, though it has no statutory authority in this respect. Such ancillary powers have always been treated as essential to the effective discharge of the Commission's responsibilities. Page 384 U. S. 608It must be remembered that the courts of appeals derive their power to grant preliminary relief here not from the Clayton Act, but from the All Writs Act and its predecessors dating back to the first Judiciary Act of 1789. Congress has never restricted the power which the courts of appeals may exercise under that Act. Nor has it withdrawn from the Commission its inherent standing as a suitor to seek preliminary relief in courts of appropriate jurisdiction. [Footnote 6] In the absence of explicit direction from Congress, we have no basis to say that an agency, charged with protecting the public interest, cannot request that a court of appeals, having jurisdiction to review administrative orders, exercise its express authority under the All Writs Act to issue such temporary injunctions as may be necessary to protect its own jurisdiction.Respondents point -- as did the Court of Appeals -- to the fact that the Commission sought authority from both the Eighty-fourth and Eighty-ninth Congresses to grant preliminary injunctions itself or to proceed in the distract court as the Department of Justice can under the Clayton Act. [Footnote 7] Both former Chairman Gwynne and Chairman Dixon appeared in support of the measures, [Footnote 8] and referred to Federal Trade Comm'n v. International Page 384 U. S. 609 Paper Co., 241 F.2d 372 (C.A.2d Cir. 1956), which held the Commission had no standing to seek preliminary injunctions from the courts of appeals. [Footnote 9] In addition, several Congressmen made statements regarding the need for statutory amendment. [Footnote 10] However, no proposal was put before the Congress relating to the authority of the Commission to secure preliminary relief before the courts of appeals in accordance with § 1651(a). The proposals concerned only the power of the Commission itself to issue preliminary relief or to proceed in the district courts for that purpose.Congress neither enacted nor rejected these proposals; it simply did not act on them. [Footnote 11] Even if it had, the legislation as proposed would have had no effect whatever on the power that Congress granted the courts by the All Writs Act. We cannot infer from the fact that Congress took no action at all on the request of the Commission Page 384 U. S. 610 to grant it or a district court power to enjoin a merger that Congress thereby expressed an intent to circumscribe traditional judicial remedies. Cf. Scripps-Howard Radio, Inc. v. Federal Communications Comm'n, 316 U. S. 4, 316 U. S. 11 (1942). The decision in Wong Yang Sung v. McGrath, 339 U. S. 33 (1950), is apposite. Following an adverse decision in Eisler v. Clark, 77 F. Supp. 610 (D.D.C.1948), the Department of Justice asked Congress for legislation exempting the Immigration Service from the Administrative Procedure Act. 60 Stat. 237, 5 U.S.C. § 1001 (1964 ed.). As was the case here, the appropriate committees of both Houses reported the proposal favorably, but Congress adjourned without taking any action. The Department nonetheless insisted in Wong Yang Sung that hearings in deportation cases did not have to conform to the requirements of the Administrative Procedure Act. In his discussion of legislative history, Mr. Justice Jackson wrote for a unanimous Court that"we will not draw the inference, urged by petitioner, that an agency admits that it is acting upon a wrong construction by seeking ratification from Congress. Public policy requires that agencies feel free to ask legislation which will terminate or avoid adverse contentions and litigations."At p. 339 U. S. 47. This Court has consistently refused to construe such requests by government agencies and the resulting nonaction of the Congress as affirmative evidence of no authority. [Footnote 12] Thus, in United States v. E. I. Du Pont De Nemours & Co., 353 U. S. 586 (1957), Mr. Justice Brennan held:"During the 35 years before this action was brought (in 1949), the Government did not invoke § 7 against vertical acquisitions. The Federal Trade Commission has said that the section did not apply to vertical acquisitions. See F.T.C., Report on Page 384 U. S. 611 Corporate Mergers and Acquisitions 168 (1955), H.R. Doc. No. 169, 84th Cong., 1st Sess. Also, the House Committee considering the 1950 revision of § 7 stated that '. . . it has been thought by some that this legislation [the 1914 Act] applies only to the so-called horizontal mergers. . . .' H.R. Rep. No. 1191, 81st Cong., 1st Sess. 11. The House Report adds, however, that the 1950 amendment was purposed ' . . . to make it clear that the bill applies to all types of mergers and acquisitions, vertical and conglomerate as well as horizontal. . . .' (Emphasis added.)""This Court has the duty to reconcile administrative interpretations with the broad antitrust policies laid down by Congress. . . . The failure of the Commission to act is not a binding administrative interpretation that Congress did not intend vertical acquisitions to come within the purview of the [1914] Act."At p. 590.Despite the representations of the Commission that the 1914 Act did not apply to vertical mergers, its sponsorship of legislation to so enlarge its coverage, and the passage of the 1950 Act by the Congress for this purpose, this Court nonetheless held that the 1914 Act included vertical mergers from its very inception, and thus required du Pont to divest its interest in General Motors stock, which had been acquired in 1915.It is therefore clear that the "proceedings" in the Congress with reference to the authority of the Commission itself to issue or apply to the district courts for the issuance of preliminary injunctions in merger cases have no relevance whatever to the question before us. In short, Congress gave no attention to the exercise of judicial power by the courts of appeals under the All Writs Act, leaving that power intact and the standing of the Commission to invoke it undiminished. We thus hold Page 384 U. S. 612 that the Commission has standing to seek preliminary relief from the Court of Appeals under the circumstances alleged. As stated earlier, we must take the allegations of the Commission as true, and so do not pass upon whether preliminary injunction should be whether a preliminary injunction should be issued. That is for the Court of Appeals to decide on remand, as it would decide any application to it for relief under the All Writs Act.Reversed

U.S. Supreme CourtFTC v. Dean Foods Co., 384 U.S. 597 (1966)Federal Trade Commission v. Dean Foods Co.No. 970Argued March 28, 1966Decided June 13, 1966384 U.S. 597SyllabusRespondents, two substantial competitors in the sale of packaged milk in the Chicago area, signed a merger agreement following meetings with representatives of the Federal Trade Commission (FTC) who indicated that the merger would raise serious questions under the antitrust laws. At the time of the merger, one of the respondents was the third or fourth largest packaged milk distributor in the area, the other at least the second largest, and together they accounted for 23% of area sales of packaged milk. The FTC filed a complaint charging that the agreement violated § 7 of the Clayton Act and § 5 of the Federal Trade Commission Act. Thereafter, the FTC, under the All Writs Act, 28 U.S.C. § 1651(a), petitioned the Court of Appeals for a temporary restraining order and a preliminary injunction to maintain the status quo until the FTC determined the merger's legality. The FTC alleged the probability of its finding an antitrust violation, and that the need for injunctive relief was "compelling," since, under the merger, one of the respondents would no longer exist, its milk routes and certain of its plants and equipment would be sold and its remaining assets would be consolidated, precluding its restoration as a viable independent company if the merger were subsequently ruled illegal. The petition alleged that the Court of Appeals would consequently be deprived of its appellate jurisdiction over final FTC orders and the opportunity to enter a meaningful order of its own. The Court of Appeals, on the hearing for a preliminary injunction, dismissed the petition on the ground that the FTC had not entered a cease and desist order, and had no authority to institute the proceeding, Congress having failed to enact bills introduced for such a purpose. The contract was then closed. MR. JUSTICE CLARK, on application, issued a preliminary injunction against material corporate changes in the acquired company and subsequently this Court granted certiorari.Held:1. The Court of Appeals has jurisdiction to issue a preliminary injunction to prevent consummation of the merger agreement upon Page 384 U. S. 598 a showing that all effective remedial order would otherwise be virtually impossible once the merger had been implemented, thus rendering a final divestiture decree futile. Pp. 384 U. S. 603-605.(a) The All Writs Act extends to the potential jurisdiction of an appellate court where an appeal is not then pending, but may later be perfected. Pp. 384 U. S. 603-604.(b) The grant in § 11(c) of the Clayton Act to courts of appeals of jurisdiction to review final orders of the FTC against illegal mergers on application of any person required thereby to cease and desist such violations includes the traditional power to preserve the status quo while administrative proceedings are in progress to prevent impairment of the effective exercise of appellate jurisdiction. Cf. Whitney Nat. Bank v. New Orleans Bank, 379 U. S. 411. Pp. 384 U. S. 604-605.2. The FTC, under the circumstances alleged in this case, has standing to seek preliminary relief under the All Writs Act. Pp. 384 U. S. 605-612.(a) It would stultify Congress' purpose in entrusting the FTC with enforcement of the Clayton Act and granting it the power to order divestiture if the FTC did not have the incidental power to ask the courts of appeals to exercise their authority under the All Writs Act. Pp. 384 U. S. 606-612.(b) The power of the courts of appeals to grant preliminary relief here derives from the All Writs Act, not the Clayton Act. P. 384 U. S. 608.(c) Congress' failure to enact proposals that the FTC be empowered itself to issue preliminary relief or to proceed in district courts for that purpose reflects no intent to circumscribe traditional judicial remedies. Pp. 384 U. S. 608-611.356 F.2d 481, reversed and remanded. Page 384 U. S. 599

1987_87-5546

JUSTICE WHITE announced the judgment of the Court, and delivered an opinion, in which THE CHIEF JUSTICE, JUSTICE SCALIA, and JUSTICE KENNEDY join.In this case, we are called on to determine if the Eighth Amendment required a Texas trial court to give certain jury instructions, relating to the consideration of mitigating evidence, that petitioner had requested in the sentencing phase of his capital trial.IAround midnight on July 25, 1975, someone attacked Mary Margaret Moran, a nurse at a Veterans' Administration hospital in San Antonio, Texas, in the hospital parking lot as she left work. Five days later, Ms. Moran was found, naked, lying in a field in the midday Texas sun. She had been stabbed seven times; Ms. Moran was also robbed, and possibly sexually assaulted. Still alive when she was discovered, Ms. Moran was taken to a local hospital, where she died the following day.Suspicion had focused on petitioner within hours of Ms. Moran's abduction, and he was arrested the following morning at his house, where police found a wide array of physical evidence concerning the crime. [Footnote 1] Petitioner told the officers Page 487 U. S. 168 that he had loaned his car and clothing to a friend the previous evening, and had no explanation for the physical evidence revealed by the search.Petitioner did not take the stand at his trial. [Footnote 2] His principal defense was that he had been mistakenly identified, and that -- even if he was the person who stabbed the victim -- her death was the result of incompetent hospital treatment, and not the assault. The jury found petitioner guilty of capital murder under Tex.Penal Code Ann. § 19.03 (1974).At the penalty phase of petitioner's trial, the State called four police officers who testified that petitioner had a bad reputation as a law-abiding citizen. The State also proved that petitioner had a prior conviction for rape, and called a witness who testified that petitioner had raped her the year before this crime was committed. The sole mitigating evidence petitioner presented was the stipulation that petitioner's disciplinary record while incarcerated from 1971-1974 and 1976-1980 was without incident. At the conclusion of this penalty hearing, the trial court, pursuant to Tex.Code Crim.Proc.Ann., Art. 37.071(b) (Vernon 1981), submitted two "Special Issues" to the jury, [Footnote 3] instructing the jury that, if Page 487 U. S. 169 they determined the answer to both these questions to be "Yes," petitioner would be sentenced to death.Earlier, petitioner had submitted five "special requested" jury instructions to direct the jury's consideration of the Special Issues. [Footnote 4] In essence, the requested instructions would Page 487 U. S. 170 have told the jury that any evidence considered by them to mitigate against the death penalty should be taken into account in answering the Special Issues, and could alone be enough to return a negative answer to either one or both of the questions submitted to them -- even if the jury otherwise believed that "Yes" answers to the Special Issues were warranted.The trial court declined to give the petitioner's requested instructions, and instead gave a brief charge which remonstrated the jury to "remember all the instructions that the Court has previously given you, and be guided by them." App. 13. Those previous instructions included the charge that they arrive at their verdict based on all the evidence. The jury returned "Yes" answers to both Special Issues, and the trial court therefore imposed a sentence of death. Subsequently, the Texas courts affirmed petitioner's conviction and death sentence. Franklin v. State, 693 S.W.2d 420 (Tex.Crim.App.1985).Petitioner then filed this federal habeas action contesting his conviction and sentence. Among other claims, petitioner argued that, absent his special requested instructions, the Texas Special Issues limited the jury's consideration of mitigating evidence, contrary to this Court's decision in Lockett v. Ohio, 438 U. S. 586 (1978), and several other decisions as well. The District Court rejected this claim, finding no error in the trial court's refusal to give the requested instructions and no violation of this Court's precedents. App. 22. The Court of Appeals affirmed the District Court's denial of habeas relief without commenting on the jury instruction claim. 823 F.2d 98, 99-100 (CA5 1987).Petitioner then sought review by this Court. We granted certiorari to determine if the trial court's refusal to give the requested instructions violated petitioner's Eighth Amendment Page 487 U. S. 171 right to present mitigating evidence at his capital sentencing trial, 484 U.S. 891 (1987), and now affirm the judgment below.IIJurek v. Texas, 428 U. S. 262 (1976), expressly upheld the constitutionality of the manner in which mitigating evidence is considered under the "Special Issues" submitted to Texas capital juries. See id. at 428 U. S. 273 (opinion of Stewart, Powell and STEVENS, JJ.). The petitioner here does not challenge the constitutionality of the Texas capital sentencing scheme as a general matter, see Tr. of Oral Arg. 11; petitioner has disavowed any request for this Court to overrule its decision in Jurek, see Tr. of Oral Arg. 18, 20.Nor does petitioner complain that he was denied the opportunity to present any mitigating evidence to the jury, or that the jury was instructed to ignore any mitigating evidence petitioner did present. Cf. Hitchcock v. Dugger, 481 U. S. 393 (1987). Here, petitioner was permitted to present to the jury any and all mitigating evidence that he offered. It is the established Texas practice to permit jury consideration of "whatever mitigating circumstances' the defendant might be able to show" in capital sentencing -- a practice which this Court relied upon when it concluded in Lockett v. Ohio, supra, that our decision in that case did not require reversal of our earlier approval of the Texas Special Issue scheme in Jurek. See Lockett v. Ohio, supra, at 438 U. S. 606-607 (opinion of Burger, C.J.). In the decade which has followed, the Texas courts have expressed resolute adherence to Lockett, declaring that, under Texas' capital sentencing procedures, the defense is free to ask "the jury . . . to consider whatever evidence of mitigating circumstances the defense can bring before it." Quinones v. State, 592 S.W.2d 933, 947 (Tex.Crim.App.1980). [Footnote 5] Page 487 U. S. 172Petitioner nevertheless complains that the instructions and Special Issues did not provide sufficient opportunity for the jury, in the process of answering the two Special Issues, to consider whatever "residual doubt" it may have had about petitioner's guilt. The instructions also allegedly did not allow the jury to give adequate weight to the mitigating evidence of petitioner's good behavior while in prison. In addition, petitioner contends that the Eighth Amendment was violated because the jury was not afforded an opportunity to "giv[e] independent mitigating weight," Lockett, supra, at 438 U. S. 605, to the circumstances the defense presented; i.e., not permitted to weigh petitioner's mitigating evidence and circumstances apart from its deliberation over the Texas Special Issues, and return a verdict requiring a life sentence. See Brief for Petitioner 20; Tr. of Oral Arg. 18, 23.We consider these claims with respect to each of petitioner's two "mitigating factors."APetitioner first suggests that the jury may, in its penalty deliberations, have harbored "residual doubts" about three issues considered in the guilt phase of his trial: first, petitioner's identity as the murderer; second, the extent to which petitioner's actions (as opposed to medical mistreatment) actually caused the victim's death; and third, the extent to which petitioner's actions were intended to result in the victim's death. See Brief for Petitioner 13; 12 Record 2892-2896. He argues that the jury should have been instructed that it could consider any such doubts in arriving at its answers to the Special Issues.(1)At the outset, we note that this Court has never held that a capital defendant has a constitutional right to an instruction telling the jury to revisit the question of his identity as the Page 487 U. S. 173 murderer as a basis for mitigation. Petitioner suggests that our discussion of the "residual doubt" question in Lockhart v. McCree, 476 U. S. 162, 476 U. S. 180-182 (1986), supports his position that he has such an entitlement. See Tr. of Oral Arg. 6-7; Brief for Petitioner 9. But all that this aspect of the Lockhart opinion stands for is the simple truism that, where "States are willing to go to allow defendants to capitalize on residual doubts,'" such doubts will inure to the defendant's benefit. Lockhart, supra, at 476 U. S. 181. Lockhart did not endorse capital sentencing schemes which permit such use of "residual doubts," let alone suggest that capital defendants have a right to demand jury consideration of "residual doubts" in the sentencing phase. Indeed, the Lockhart dissent recognized that there have been only a "few times in which any legitimacy has been given" to the notion that a convicted capital defendant has a right to argue his innocence during the sentencing phase. 476 U.S. at 476 U. S. 205-206 (MARSHALL, J., dissenting). The dissent also noted that this Court has not struck down the practice in some States of prohibiting the consideration of "residual doubts" during the punishment trial. [Footnote 6] Ibid. Page 487 U. S. 174Our edict that, in a capital case,"the sentencer . . . [may] not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense,"Eddings v. Oklahoma, 455 U. S. 104, 455 U. S. 110 (1982) (quoting Lockett, 438 U.S. at 438 U. S. 604), in no way mandates reconsideration by capital juries, in the sentencing phase, of their "residual doubts" over a defendant's guilt. Such lingering doubts are not over any aspect of petitioner's "character," "record," or a "circumstance of the offense." This Court's prior decisions, as we understand them, fail to recognize a constitutional right to have such doubts considered as a mitigating factor.Most importantly, even if we were inclined to discern such a right in the Eighth Amendment, we would not find any violation of it in this case. For even if such a right existed, nothing done by the trial court impaired petitioner's exercise of this "right." The trial court placed no limitation whatsoever on petitioner's opportunity to press the "residual doubts" question with the sentencing jury. Moreover, in our view, the trial court's rejection of petitioner's proffered jury instructions was without impact on the jury's consideration of the "residual doubts" issue. We reject petitioner's complaint that the possibility of residual doubt was not "self-evidently relevant to either of the special issue questions," and that,"[u]nless told that residual doubt . . . could be considered in relation to [the special issue] question[s], the jurors could logically have concluded that such doubt was irrelevant."Brief for Petitioner 15, 16. Among other problems with this argument is the simple fact that petitioner's requested instructions on mitigating evidence themselves offered no specific direction to the jury concerning the potential consideration of "residual doubt." See App. 7-12. The proposed instructions did not suggest that lingering doubts Page 487 U. S. 175 about the petitioner's guilt were to be a subject of deliberations in the sentencing phase. [Footnote 7] Consequently, it is difficult to see how the rejection of these instructions denied petitioner the benefit of any "residual doubts" about his guilt.In sum, even if petitioner had some constitutional right to seek jury consideration of "residual doubts" about his guilt during his sentencing hearing -- a questionable proposition -- the rejection of petitioner's proffered jury instructions did not impair this "right."(2)In regard to the second and third elements of "residual doubt" petitioner advances -- potential jury doubts over his responsibility for the victim's death, and the extent to which he intended the victim's death if indeed he was her attacker -- we do not think that the Texas Special Issues limited the jury's consideration of any doubts in these respects.Petitioner suggests that there may have been residual doubt over the question of whether the victim would have perished had she received proper medical treatment. See Brief for Petitioner 5, 13; 12 Record 2895-2896. Yet, to the extent that this question implicates petitioner's culpability in causing Ms. Moran's death, this is precisely the concern that the jury might have considered in answering Special Issue No. One, i.e., in determining that"the conduct of the Defendant . . . that caused the death of [the victim] was committed deliberately and with the reasonable expectation that the death of the deceased . . . would result."App. 15. The Page 487 U. S. 176 Texas courts have consistently held that something more must be found in the penalty phase -- something beyond the guilt-phase finding of "intentional" commission of the crime -- before the jury can determine that a capital murder is "deliberate" within the meaning of the first Special Issue. See, e.g., Marquez v. State, 725 S.W.2d 217, 244 (Tex.Crim.App.1987); Fearance v. State, 620 S.W.2d 577, 584 (Tex.Crim.App.1981). In fact, Texas juries have found, on occasion, that a defendant had committed an "intentional murder" without finding that the murder was a "deliberate" one. See, e.g., Heckert v. State, 612 S.W.2d 549, 552 (Tex.Crim.App.1981). Petitioner was not deprived of any opportunity to make a similar argument here in mitigation.The same is true of the parallel contention that petitioner did advance at the end of the penalty hearing: that his murder of Ms. Moran was not a "deliberate" one, but rather "a [h]elter-skelter crazy crime of passion." 13 Record 2962-2963. This argument echoed a theme petitioner raised in the closing argument of the guilt phase of the trial. See 12 Record 2893-2897. But this element of "residual doubt" could likewise have been considered by the jury in answering the first Special Issue.Petitioner was thus not deprived of any chance to have his sentencing jury weigh this element of his culpability. And, as was the case with respect to the "residual doubt" issue discussed in Part II-A(1), there was nothing in petitioner's proposed jury instructions which would have provided the jury with any further guidance, beyond that already found in the first Special Issue, to direct its consideration of this mitigating factor. The denial of petitioner's special requested instructions in no way limited his efforts to gain full consideration by the sentencing jury -- including a reconsideration of any "residual doubts" from the guilt phase -- of petitioner's deliberateness in killing Ms. Moran. Page 487 U. S. 177BThe second mitigating circumstance which petitioner claims that the jury did not adequately consider is his good disciplinary record during his period of incarceration, both before and after the murder of Ms. Moran.As noted above, petitioner's prison disciplinary record was presented to the jury in this case -- in fact, it was the sole bit of evidence in mitigation petitioner presented during the penalty phase of his trial. 13 Record 2952-2953. This case is therefore unlike Skipper v. South Carolina, 476 U. S. 1, 476 U. S. 3 (1986), where evidence of the defendant's conduct while incarcerated was wholly excluded from the jury's consideration in its sentencing deliberations. To the contrary, petitioner here was permitted to press, with some emphasis, his good behavior in prison when he urged the jury, at the close of the sentencing hearing, to return a "No" answer to the second Special Issue concerning future dangerousness. See 13 Record 2963-2965. Petitioner acknowledged as much before this Court. Tr. of Oral Arg. 14, 24.Petitioner objects, however, that -- absent his requested jury instructions -- there was no opportunity for the jury to give "independent" mitigating weight to his prison record. See Lockett, 438 U.S. at 438 U. S. 604. He argues that this mitigating evidence had significance independent of its relevance to the Special Issues -- as a reflection on his "character." See Skipper, supra, at 476 U. S. 4. Petitioner contends that his prison disciplinary record reflected so positively on his "character" that the instructions in this case should have provided the jury with a "mechanism though which to impose a life sentence" even if the jury otherwise believed that both Special Issues should have been answered "Yes." Brief for Petitioner 20. For several reasons, we do not find these arguments convincing.First, petitioner was accorded a full opportunity to have his sentencing jury consider and give effect to any mitigating Page 487 U. S. 178 impulse that petitioner's prison record might have suggested to the jury as they proceeded with their task. In resolving the second Texas Special Issue, the jury was surely free to weigh and evaluate petitioner's disciplinary record as it bore on his "character" -- that is, his "character" as measured by his likely future behavior. We have never defined what the term "character" means when we have held that a defendant's "character" is a relevant consideration in capital sentencing. [Footnote 8] But nothing in our cases supports petitioner's contention that relevant aspects of his "character," as far as they were illuminated by the presentation of evidence concerning petitioner's disciplinary record, encompassed anything more than those matters fully considered by the jury when it was asked to answer the second Special Issue.Indeed, our discussion in Skipper of the relevancy of such disciplinary record evidence in capital sentencing decisions dealt exclusively with the question of how such evidence reflects on a defendant's likely future behavior. See Skipper, supra, at 476 U. S. 4-5. Nothing in Skipper suggests that such evidence has any further relevancy with respect to a defendant's "character" or with respect to the punishment decision. Moreover, Skipper's discussion of the proper use of a defendant's prison disciplinary record in a jury's sentencing decision focused precisely on the way in which such evidence is encompassed by the Texas future dangerousness question, and on the Court's previous decision in Jurek. See 476 U.S. at 476 U. S. 4-5. Furthermore, we note that nothing in petitioner's presentation or discussion of his prison record at the sentencing hearing urged the jury to consider petitioner's record as probative of anything more than that the answer to the question posed by Special Issue Two should be "No." See 13 Record Page 487 U. S. 179 2963-2964. Even in this Court, in seeking to define how his prison record sheds light on his "character," petitioner has cast his argument in terms of future dangerousness. [Footnote 9]We find unavailing petitioner's reliance on this Court's statement in Eddings, 455 U.S. at 455 U. S. 114, that the sentencing jury may not be precluded from considering "any relevant, mitigating evidence." See Tr. of Oral Arg. 15. This statement leaves unanswered the question: relevant to what? While Lockett, supra, at 438 U. S. 604, answers this question at least in part -- making it clear that a State cannot take out of the realm of relevant sentencing considerations the questions of the defendant's "character," "record," or the "circumstances of the offense" -- Lockett does not hold that the State has no role in structuring or giving shape to the jury's consideration of these mitigating factors. See Booth v. Maryland, 482 U. S. 496, 482 U. S. 502 (1987). Given the awesome power that a sentencing jury must exercise in a capital case, it may be advisable for a State to provide the jury with some framework for discharging these responsibilities. And we have never held that a specific method for balancing mitigating and aggravating factors in a capital sentencing proceeding is constitutionally required. See Zant v. Stephens, 462 U. S. 862, 462 U. S. 875-876, n. 13 (1983).We are thus quite sure that the jury's consideration of petitioner's prison record was not improperly limited. The jury Page 487 U. S. 180 was completely free to give that evidence appropriate weight in arriving at its answers to the Special Issues. And as for the claim that the jury should have been instructed that, even if its answer to the Special Issues was "Yes," it was still entitled to cast an "independent" vote against the death penalty, we note that this submission is foreclosed by Jurek, which held that Texas could constitutionally impose the death penalty if a jury returned "Yes" answers to the two Special Issues. See Jurek, 428 U.S. at 428 U. S. 273-274 (joint opinion). Jurek has not been overruled; and we are not inclined to take any such action now. [Footnote 10] Page 487 U. S. 181IIIOur specific rejection of petitioner's claims is well supported by the general principles governing the role of mitigating evidence in capital sentencing which have been developed since our decisions in Gregg v. Georgia, 428 U. S. 153 (1976), and Jurek v. Texas, supra.It is true that, since Jurek was decided, this Court has gone far in establishing a constitutional entitlement of capital defendants to appeal for leniency in the exercise of juries' sentencing discretion. See, e.g., Eddings v. Oklahoma, 455 U.S. at 455 U. S. 113-117, Lockett v. Ohio, 438 U.S. at 438 U. S. 608 (opinion of Burger, C.J.). But even in so doing, this Court has never held that jury discretion must be unlimited or unguided; we have never suggested that jury consideration of mitigating evidence must be undirected or unfocused; we have never concluded that States cannot channel jury discretion in capital sentencing in an effort to achieve a more rational and equitable administration of the death penalty.Much in our cases suggests just the opposite. This Court has previously held that the States"must channel the [capital] sentencer's discretion by 'clear and objective standards' that provide 'specific and detailed guidance' and that 'make rationally reviewable the process for imposing a sentence of death.'"Godfrey v. Georgia, 446 U. S. 420, 446 U. S. 428 (1980) (plurality opinion) (footnotes omitted). Our cases before and since have similarly suggested that "sentencers may not be given unbridled discretion in determining the fates of those charged with capital offenses," and that the"Constitution . . . requires that death penalty statutes be structured so as to prevent the penalty from being administered in an arbitrary and unpredictable fashion."California v. Brown, 479 U. S. 538, 479 U. S. 541 (1987). See also Proffitt v. Florida, 428 U. S. 242, 428 U. S. 253 (1976) (joint opinion); Gregg v. Georgia, supra, at 428 U. S. 189, 428 U. S. 195, n. 46, 428 U. S. 196, n. 47, 428 U. S. 198 (joint opinion). Page 487 U. S. 182Arguably these two lines of cases -- Eddings and Lockett on the one hand, and Gregg and Proffitt on the other -- are somewhat in "tension" with each other. See California v. Brown, supra, at 479 U. S. 544 (O'CONNOR, J., concurring). Yet the Texas capital sentencing system has been upheld by this Court, and its method for providing for the consideration of mitigating evidence has been cited repeatedly with favor, [Footnote 11] precisely because of the way in which the Texas scheme accommodates both of these concerns. Doubtlessly this is why this Court originally approved Texas' use of Special Issues to guide jury discretion in the sentencing phase, notwithstanding the fact -- expressly averted to in the plurality opinion for the Court -- that mitigating evidence is employed in the Texas scheme only to inform the jury's consideration of the answers to the Special Issue questions. Jurek, supra, at 428 U. S. 272-273. [Footnote 12] No doubt this is also why the Texas scheme has continued to pass constitutional muster, even when the Court laid down its broad rule in Lockett, supra, at 438 U. S. 606-607 (opinion of Burger, C.J.), concerning the consideration of mitigating evidence. Simply put, we have previously recognized that the Texas Special Issues adequately"allo[w] the jury to consider the mitigating aspects of the crime and the unique characteristics of the perpetrator, and therefore sufficiently provid[e] for jury discretion."See Lowenfield v. Phelps, 484 U. S. 231, 484 U. S. 245 (1988). We adhere to this prior conclusion. Page 487 U. S. 183IVBecause we do not believe that the jury instructions or the Texas Special Issues precluded jury consideration of any relevant mitigating circumstances in this case, or otherwise unconstitutionally limited the jury's discretion here, we reject petitioner's Eighth Amendment challenge to his death sentence. Consequently, the Fifth Circuit's judgment in this case isAffirmed

U.S. Supreme CourtFranklin v. Lynaugh, 487 U.S. 164 (1988)Franklin v. LynaughNo. 87-5546Argued March 1, 1988Decided June 22, 1988487 U.S. 164SyllabusAt petitioner's Texas capital murder trial, his principal defense was that he had been mistakenly identified, and that -- even if he was the person who stabbed the victim -- her death resulted from incompetent hospital treatment, and not the assault. After the jury found him guilty, the sole mitigating evidence he presented at the penalty phase was the stipulation that his disciplinary record while incarcerated, both before and after the murder, was without incident. At the conclusion of the penalty hearing, the trial court, pursuant to state law, submitted two "Special Issues" to the jury, asking whether it found from the evidence beyond a reasonable doubt (1) that the murder was committed deliberately and with the reasonable expectation that death would result, and (2) that there was a probability that petitioner would constitute a continuing threat to society. The court instructed the jury that, if their answer was "Yes" to both questions, petitioner would be sentenced to death. Earlier, in order to direct the jury's consideration of the Special Issues, petitioner had submitted five "special requested" jury instructions, which, in essence, would have told the jury that any evidence they felt mitigated against the death penalty should be taken into account in answering the Special Issues, and could alone be enough to return a negative answer to either one or both of the questions, even if they otherwise believed that "Yes" answers were warranted. The court declined to give the requested instructions, and instead remonstrated the jury to remember and be guided by all instructions previously given, which included the charge that they arrive at their verdict based on all the evidence. After the jury returned "Yes" answers to both Special Issues, the court sentenced petitioner to death, and the state appellate court affirmed. Petitioner then filed this habeas corpus action, arguing that, absent his special requested instructions, the Special Issues limited the jury's consideration of mitigating evidence in violation of the Eighth Amendment under this Court's decisions. Rejecting this claim, the District Court denied relief, and the Court of Appeals affirmed.Held: The judgment is affirmed.823 F.2d 98, affirmed.JUSTICE WHITE, joined by THE CHIEF JUSTICE, JUSTICE SCALIA, and JUSTICE KENNEDY, concluded that the trial court's refusal to give petitioner's Page 487 U. S. 165 requested special instructions did not violate his Eighth Amendment right to present mitigating evidence. Neither the instructions actually given nor the Texas Special Issues precluded jury consideration of any relevant mitigating circumstances, or otherwise unconstitutionally limited the jury's discretion. Pp. 487 U. S. 171-183.(a) There is no merit to petitioner's contention that the sentencing jury was deprived of a sufficient opportunity to consider any "residual doubt" it might have harbored about his identity as the murderer, or about the extent to which his actions (as opposed to medical mistreatment) actually caused, or were intended to result in, the victim's death. This Court has never held that a capital defendant has a constitutional right to an instruction telling the jury to revisit the question of his guilt as a basis for mitigation. The discussion of the "residual doubt" question in Lockhart v. McCree, 476 U. S. 162, stands only for the simple truism that such doubts will inure to the defendant's benefit where the State is willing to allow him to capitalize upon them. Nor does Eddings v. Oklahoma, 455 U. S. 104, establish the claimed "right," since lingering doubts over the defendant's guilt do not relate to his "character" or "record," or to "the circumstances of the offense," which the sentencer must be given a chance to consider in mitigation. However, even if the claimed "right" existed, the rejection of petitioner's proffered instructions did not impair that right, since the trial court placed no limitation on petitioner's opportunity to press the "residual doubts" issue. Moreover, the medical mistreatment and intentional killing questions are precisely the type of concerns that the jury might have considered in answering the deliberateness question of the first Special Issue, and, thus, petitioner was not deprived of any opportunity to make, and in fact made, a nondeliberateness argument to the jury. In any case, there was nothing in the proffered special instructions that offered specific direction to the jury concerning their consideration of any of these "residual doubt" questions. Pp. 487 U. S. 172-176.(b) Since, at the sentencing hearing, petitioner was permitted to emphasize evidence of his good prison disciplinary record with regard to the second Special Issue concerning future dangerousness, the jury was not precluded from giving adequate mitigating weight to that evidence. Petitioner's contention that the failure to give his requested instructions deprived the evidence of its significance as a reflection of his "character" independent of its relevance to the Special Issues is not convincing, since nothing in this Court's cases suggests that "character," as illuminated by a disciplinary record, encompasses anything more than likely future behavior. Cf. Skipper v. South Carolina, 476 U. S. 1. Furthermore, nothing in petitioner's presentation or discussion of his record at the hearing suggested that the jury should consider that evidence as probative of anything more than future dangerousness. Petitioner cannot Page 487 U. S. 166 avail himself of the statement in Eddings, supra, at 455 U. S. 114, that the sentencing jury may not be precluded from considering "any relevant mitigating evidence," since the State is entitled to structure the jury's consideration of mitigating factors. The claim that the jury should have been instructed that it was entitled to vote against the death penalty "independent" of its answers to the Special Issues is foreclosed by Jurek v. Texas, 428 U. S. 262, which held that the State could constitutionally impose death if the jury answered "Yes" to both Special Issues. Pp. 487 U. S. 177-180.(c) The Texas capital sentencing system adequately allows for jury consideration of mitigating circumstances, and therefore sufficiently provides for jury discretion. Pp. 487 U. S. 181-182.JUSTICE O'CONNOR, joined by JUSTICE BLACKMUN, concluded that the Texas capital sentencing procedure did not unconstitutionally prevent the jury from giving mitigating effect to any evidence relevant to petitioner's character or background or the circumstances of the offense. Pp. 487 U. S. 183-188.(a) Although the Texas procedure did confine consideration of the stipulation as to petitioner's prison disciplinary record to the context of the special verdict question regarding future dangerousness, thereby preventing the jury from treating the stipulation as if it were relevant to other character traits, that limitation has no practical or constitutional significance on the facts of this case, because the stipulation had no relevance to any aspect of petitioner's character other than a lack of future dangerousness. Thus, petitioner was not prejudiced by the limitation, since it did not interfere with his presentation of mitigating evidence or with the jury's ability to give effect to that evidence. Cf. Skipper v. South Carolina, 476 U. S. 1. Pp. 487 U. S. 185-187.(b) Although the capital sentencing procedure may have prevented the jury from giving effect to any "residual doubts" it might have had about petitioner's guilt, that limitation did not violate the Eighth Amendment. Rather than being a fact about the defendant's character or background or the circumstances of the particular offense, "residual doubt" is merely a lingering uncertainty about facts -- a state of mind that exists somewhere between "beyond a reasonable doubt" and "absolute certainty" -- and thus is not a mitigating circumstance under this Court's decisions, which have never required such a heightened burden of proof at capital sentencing. Pp. 487 U. S. 187-188.WHITE, J., announced the judgment of the Court, and delivered an opinion, in which REHNQUIST, C.J., and SCALIA and KENNEDY, JJ., joined. O'CONNOR, J., filed an opinion concurring in the judgment, in which BLACKMUN, J., joined, post, p. 487 U. S. 183. STEVENS, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 487 U. S. 189. Page 487 U. S. 167

1995_95-566

JosephP Afazurek, Attorney General of ]don tan a, argued the cause for petitioner. With him on the briefs were Pamela P Collins, Assistant Attorney General, Clay R. Smith, and Carter G. Phillips.Afiguel A. Estrada argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Days, Acting Assistant Attorney General Keeney, Deputy Solicitor General Dreeben, and Nina Goodman.Ann C. German argued the cause for respondent. With her on the brief was Amy N. Guth. *JUSTICE SCALIA announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE, JUSTICE KENNEDY, and JUSTICE THOMAS join.We consider in this case whether the Due Process Clause is violated by ]dontana Code Annotated § 45-2-203, which provides, in relevant part, that voluntary intoxication "may*Briefs of amici curiae urging reversal were filed for the State of Hawaii et al. by Margery S. Bronster, Attorney General of Hawaii, and Steven S. Michaels, Deputy Attorney General, and by the Attorneys General for their respective jurisdictions as follows: Bruce M. Botelho of Alaska, Grant Woods of Arizona, Winston Bryant of Arkansas, Gale A. Norton of Colorado, M. Jane Brady of Delaware, Carla J. Stovall of Kansas, Mike Moore of Mississippi, Jeremiah W Nixon of Missouri, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Tom Udall of New Mexico, Betty D. Montgomery of Ohio, W A. Drew Edmondson of Oklahoma, Thomas W Corbett, Jr., of Pennsylvania, Charles Molony Condon of South Carolina, Dan Morales of Texas, Darrell V. McGraw, Jr., of West Virginia, Malaetasi Togafau of American Samoa, and Richard Weil of the Northern Mariana Islands; for the American Alliance for Rights and Responsibilities et al. by Philip Allen Lacovara and Robert Teir; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger and CharlesDiane Marie Amann and Barbara E. Bergman filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae urging affirmance.40Opinion of SCALIA, J.not be taken into consideration in determining the existence of a mental state which is an element of [a criminal] offense."IIn July 1992, while camping out in the Yaak region of northwestern Montana to pick mushrooms, respondent made friends with Roberta Pavola and John Christenson, who were doing the same. On Sunday, July 12, the three sold the mushrooms they had collected and spent the rest of the day and evening drinking, in bars and at a private party in Troy, Montana. Some time after 9 p.m., they left the party in Christenson's 1974 Ford Galaxy station wagon. The drinking binge apparently continued, as respondent was seen buying beer at 9:20 p.m. and recalled "sitting on a hill or a bank passing a bottle of Black Velvet back and forth" with Christenson. 272 Mont. 114, 118, 900 P. 2d 260, 262 (1995).At about midnight that night, officers of the Lincoln County, Montana, sheriff's department, responding to reports of a possible drunk driver, discovered Christenson's station wagon stuck in a ditch along U. S. Highway 2. In the front seat were Pavola and Christenson, each dead from a single gunshot to the head. In the rear of the car lay respondent, alive and yelling obscenities. His blood-alcohol content measured .36 percent over one hour later. On the floor of the car, near the brake pedal, lay respondent's .38caliber handgun, with four loaded rounds and two empty casings; respondent had gunshot residue on his hands.Respondent was charged with two counts of deliberate homicide, a crime defined by Montana law as "purposely" or "knowingly" causing the death of another human being. Mont. Code Ann. §45-5-102 (1995). A portion of the jury charge, uncontested here, instructed that "[a] person acts purposely when it is his conscious object to engage in conduct of that nature or to cause such a result," and that "[a] person acts knowingly when he is aware of his conduct or when he is aware under the circumstances his conduct consti-41tutes a crime; or, when he is aware there exists the high probability that his conduct will cause a specific result." App. to Pet. for Cert. 28a-29a. Respondent's defense at trial was that an unidentified fourth person must have committed the murders; his own extreme intoxication, he claimed, had rendered him physically incapable of committing the murders, and accounted for his inability to recall the events of the night of July 12. Although respondent was allowed to make this use of the evidence that he was intoxicated, the jury was instructed, pursuant to Mont. Code Ann. § 45-2-203 (1995), that it could not consider respondent's "intoxicated condition ... in determining the existence of a mental state which is an element of the offense." App. to Pet. for Cert. 29a. The jury found respondent guilty on both counts, and the court sentenced him to 84 years' imprisonment.The Supreme Court of Montana reversed. It reasoned (1) that respondent "had a due process right to present and have considered by the jury all relevant evidence to rebut the State's evidence on all elements of the offense charged," 272 Mont., at 125, 900 P. 2d, at 266, and (2) that evidence of respondent's voluntary intoxication was "clear[ly] ... relevant to the issue of whether [respondent] acted knowingly and purposely," id., at 122, 900 P. 2d, at 265. Because § 45-2-203 prevented the jury from considering that evidence with regard to that issue, the court concluded that the State had been "relieved of part of its burden to prove beyond a reasonable doubt every fact necessary to constitute the crime charged," id., at 124, 900 P. 2d, at 266, and that respondent had therefore been denied due process. We granted certiorari. 516 U. S. 1021 (1995).IIThe cornerstone of the Montana Supreme Court's judgment was the proposition that the Due Process Clause guarantees a defendant the right to present and have considered42Opinion of SCALIA, J.by the jury "all relevant evidence to rebut the State's evidence on all elements of the offense charged." 272 Mont., at 125, 900 P. 2d, at 266 (emphasis added). Respondent does not defend this categorical rule; he acknowledges that the right to present relevant evidence "has not been viewed as absolute." Brief for Respondent 31. That is a wise concession, since the proposition that the Due Process Clause guarantees the right to introduce all relevant evidence is simply indefensible. As we have said: "The accused does not have an unfettered right to offer [evidence] that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence." Taylor v. Illinois, 484 U. S. 400, 410 (1988). Relevant evidence may, for example, be excluded on account of a defendant's failure to comply with procedural requirements. See Michigan v. Lucas, 500 U. S. 145, 151 (1991). And any number of familiar and unquestionably constitutional evidentiary rules also authorize the exclusion of relevant evidence. For example, Federal (and Montana) Rule of Evidence 403 provides: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." (Emphasis added.) Hearsay rules, see Fed. Rule Evid. 802, similarly prohibit the introduction of testimony which, though unquestionably relevant, is deemed insufficiently reliable.1 Of course, to say that the right to intro-IJUSTICE O'CONNOR agrees that "a defendant does not enjoy an absolute right to present evidence relevant to his defense," post, at 62, and does not dispute the validity of the evidentiary rules mentioned above. She contends, however, that Montana's Rule is not like these because it "places a blanket exclusion on a category of evidence that would allow the accused to negate the offense's mental-state element." Ibid. (emphasis added). Of course hearsay is a "category" of evidence as well; what JUSTICE O'CONNOR apparently has in mind is that this particular category relates to evidence tending to prove a particular fact. That is indeed a distinction, but it is hard to understand why it should make43duce relevant evidence is not absolute is not to say that the Due Process Clause places no limits upon restriction of that right. But it is to say that the defendant asserting such a limit must sustain the usual heavy burden that a due process claim entails:"[P]reventing and dealing with crime is much more the business of the States than it is of the Federal Government, and ... we should not lightly construe the Constitution so as to intrude upon the administration of justice by the individual States. Among other things, it is normally 'within the power of the State to regulate procedures under which its laws are carried out,' ... and its decision in this regard is not subject to proscription under the Due Process Clause unless 'it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.'" Patterson v. New York, 432 U. S. 197, 201-202 (1977) (citations omitted).See also Cooper v. Oklahoma, 517 U. S. 348, 355 (1996) (applying Patterson test); Marshall v. Lonberger, 459 U. S. 422, 438, n. 6 (1983) ("[T]he Due Process Clause does not permit the federal courts to engage in a finely tuned review of the wisdom of state evidentiary rules"). Respondent's task, then, is to establish that a defendant's right to have a jury consider evidence of his voluntary intoxication in determining whether he possesses the requisite mental state is a "fundamental principle of justice."Our primary guide in determining whether the principle in question is fundamental is, of course, historical practice.a difference. So long as the category of excluded evidence is selected on a basis that has good and traditional policy support, it ought to be valid.We do not entirely understand JUSTICE O'CONNOR'S argument that the vice of § 45-2-203 is that it excludes evidence "essential to the accused's defense," post, at 64; see also post, at 72. Evidence of intoxication is not always "essential," any more than hearsay evidence is always "nonessential."44Opinion of SCALIA, J.See Medina v. California, 505 U. S. 437, 446 (1992). Here that gives respondent little support. By the laws of England, wrote Hale, the intoxicated defendant "shall have no privilege by this voluntary contracted madness, but shall have the same judgment as if he were in his right senses." 1 M. Hale, Pleas of the Crown *32-*33. According to Blackstone and Coke, the law's condemnation of those suffering from dementia affectata was harsher still: Blackstone, citing Coke, explained that the law viewed intoxication "as an aggravation of the offence, rather than as an excuse for any criminal misbehaviour." 4 W. Blackstone, Commentaries *25-*26. This stern rejection of inebriation as a defense became a fixture of early American law as well. The American editors of the 1847 edition of Hale wrote:"Drunkenness, it was said in an early case, can never be received as a ground to excuse or palliate an offence: this is not merely the opinion of a speculative philosopher, the argument of counsel, or the obiter dictum of a single judge, but it is a sound and long established maxim of judicial policy, from which perhaps a single dissenting voice cannot be found. But if no other authority could be adduced, the uniform decisions of our own Courts from the first establishment of the government, would constitute it now a part of the common law of the land." 1 Hale, supra, at *32, n. 3.In an opinion citing the foregoing passages from Blackstone and Hale, Justice Story rejected an objection to the exclusion of evidence of intoxication as follows:"This is the first time, that I ever remember it to have been contended, that the commission of one crime was an excuse for another. Drunkenness is a gross vice, and in the contemplation of some of our laws is a crime; and I learned in my earlier studies, that so far from its being in law an excuse for murder, it is rather an aggravation45of its malignity." United States v. Cornell, 25 F. Cas. 650, 657-658 (No. 14,868) (CC R. 1. 1820).The historical record does not leave room for the view that the common law's rejection of intoxication as an "excuse" or "justification" for crime would nonetheless permit the defendant to show that intoxication prevented the requisite mens rea. Hale, Coke, and Blackstone were familiar, to say the least, with the concept of mens rea, and acknowledged that drunkenness "deprive[s] men of the use of reason," 1 Hale, supra, at *32; see also Blackstone, supra, at *25. It is inconceivable that they did not realize that an offender's drunkenness might impair his ability to form the requisite intent; and inconceivable that their failure to note this massive exception from the general rule of disregard of intoxication was an oversight. Hale's statement that a drunken offender shall have the same judgment "as if he were in his right senses" must be understood as precluding a defendant from arguing that, because of his intoxication, he could not have possessed the mens rea required to commit the crime. And the same must be said of the exemplar of the commonlaw rule cited by both Hale and Blackstone, see 1 Hale, supra, at *32; Blackstone, supra, at *26, n. w, which is Serjeant Pollard's argument to the King's Bench in Reniger v. Fogossa, 1 Plowd. 1, 19, 75 Eng. Rep. 1, 31 (1550): "[I]f a person that is drunk kills another, this shall be Felony, and he shall be hanged for it, and yet he did it through Ignorance, for when he was drunk he had no Understanding nor Memory; but inasmuch as that Ignorance was occasioned by his own Act and Folly, and he might have avoided it, he shall not be privileged thereby." (Emphasis added.) See also Beverley's Case, 4 Co. Rep. 123b, 125a, 76 Eng. Rep. 1118, 1123 (K. B. 1603) ("although he who is drunk, is for the time non compos mentis, yet his drunkenness does not extenuate his act or offence, nor turn to his avail" (emphasis added) (footnote omitted)).46Opinion of SCALIA, J.Against this extensive evidence of a lengthy common-law tradition decidedly against him, the best argument available to respondent is the one made by his amicus and conceded by the State: Over the course of the 19th century, courts carved out an exception to the common law's traditional across-the-board condemnation of the drunken offender, allowing a jury to consider a defendant's intoxication when assessing whether he possessed the mental state needed to commit the crime charged, where the crime was one requiring a "specific intent." The emergence of this new rule is often traced to an 1819 English case, in which Justice Holroyd is reported to have held that "though voluntary drunkenness cannot excuse from the commission of crime, yet where, as on a charge of murder, the material question is, whether an act was premeditated or done only with sudden heat and impulse, the fact of the party being intoxicated [is] a circumstance proper to be taken into consideration." 1 W. Russell, Crimes and Misdemeanors *8 (citing King v. Grindley, Worcester Sum. Assizes 1819, MS). This exception was "slow to take root," however, Hall, Intoxication and Criminal Responsibility, 57 Harv. L. Rev. 1045, 1049 (1944), even in England. Indeed, in the 1835 case of King v. Carroll, 7 Car. & P. 145, 147, 173 Eng. Rep. 64, 65 (N. P.), Justice Park claimed that Holroyd had "retracted his opinion" in Grindley, and said "there is no doubt that that case is not law." In this country, as late as 1858 the Missouri Supreme Court could speak as categorically as this:"To look for deliberation and forethought in a man maddened by intoxication is vain, for drunkenness has deprived him of the deliberating faculties to a greater or less extent; and if this deprivation is to relieve him of all responsibility or to diminish it, the great majority of crimes committed will go unpunished. This however is not the doctrine of the common law; and to its maxims, based as they obviously are upon true wisdom and sound47policy, we must adhere." State v. Cross, 27 Mo. 332, 338 (1858).And as late as 1878, the Vermont Supreme Court upheld the giving of the following instruction at a murder trial:"'The voluntary intoxication of one who without provocation commits a homicide, although amounting to a frenzy, that is, although the intoxication amounts to a frenzy, does not excuse him from the same construction of his conduct, and the same legal inferences upon the question of premeditation and intent, as affecting the grade of his crime, which are applicable to a person entirely sober.'" State v. Tatro, 50 Vt. 483, 487 (1878).See also Harris v. United States, 8 App. D. C. 20, 26-30 (1896); Flanigan v. People, 86 N. Y. 554, 559-560 (1881); Commonwealth v. Hawkins, 69 Mass. 463, 466 (1855); State v. McCants, 1 Spears 384, 391-395 (S. C. 1842). Eventually, however, the new view won out, and by the end of the 19th century, in most American jurisdictions, intoxication could be considered in determining whether a defendant was capable of forming the specific intent necessary to commit the crime charged. See Hall, supra, at 1049; Hopt v. People, 104 U. S. 631, 633-634 (1882) (citing cases).On the basis of this historical record, respondent's amicus argues that "[t]he old common-law rule ... was no longer deeply rooted at the time the Fourteenth Amendment was ratified." Brief for National Association of Criminal Defense Lawyers as Amicus Curiae 23. That conclusion is questionable, but we need not pursue the point, since the argument of amicus mistakes the nature of our inquiry. It is not the State which bears the burden of demonstrating that its rule is "deeply rooted," but rather respondent who must show that the principle of procedure vio lated by the rule (and allegedly required by due process) is " 'so rooted in the traditions and conscience of our people as to be ranked as fundamental.'" Patterson v. New York, 432 U. S., at 202.48Opinion of SCALIA, J.Thus, even assuming that when the Fourteenth Amendment was adopted the rule Montana now defends was no longer generally applied, this only cuts off what might be called an a fortiori argument in favor of the State. The burden remains upon respondent to show that the "new common-law" rule-that intoxication may be considered on the question of intent-was so deeply rooted at the time of the Fourteenth Amendment (or perhaps has become so deeply rooted since) as to be a fundamental principle which that Amendment enshrined.That showing has not been made. Instead of the uniform and continuing acceptance we would expect for a rule that enjoys "fundamental principle" status, we find that fully one-fifth of the States either never adopted the "new common-law" rule at issue here or have recently abandoned it.2 Cf. Cooper v. Oklahoma, 517 U. S. 348 (1996) (finding due process violation in a rule having no common-law pedigree whatever, and adopted, very recently, by only four States). See also Martin v. Ohio, 480 U. S. 228, 236 (1987)2 Besides Montana, those States are Arizona, see State v. Ramos, 133 Ariz. 4, 6, 648 P. 2d 119, 121 (1982) (upholding statute precluding jury consideration of intoxication for purposes of determining whether defendant acted "knowingly"); Ariz. Rev. Stat. Ann. § 13-503 (Supp. 1995-1996) (voluntary intoxication "is not a defense for any criminal act or requisite state of mind"); Arkansas, see White v. State, 290 Ark. 130, 134-137, 717 S. W. 2d 784, 786-788 (1986) (interpreting Ark. Code Ann. § 5-2-207 (1993)); Delaware, see Wyant v. State, 519 A. 2d 649, 651 (1986) (interpreting Del. Code Ann., Tit. 11, § 421 (1995)); Georgia, see Foster v. State, 258 Ga. 736, 742-745, 374 S. E. 2d 188, 194-196 (1988) (interpreting Ga. Code Ann. § 16-3-4 (1992)), cert. denied, 490 U. S. 1085 (1989); Hawaii, see Haw. Rev. Stat. § 702-230(2) (1993), State v. Souza, 72 Haw. 246, 248, 813 P. 2d 1384, 1386 (1991) (§ 702-230(2) is constitutional); Mississippi, see Lanier v. State, 533 So. 2d 473, 478-479 (1988); Missouri, see Mo. Rev. Stat. § 562.076 (1994), State v. Erwin, 848 S. W. 2d 476, 482 (§ 562.076 is constitutional), cert. denied, 510 U. S. 826 (1993); South Carolina, see State v. Vaughn, 268 S. C. 119, 124-126,232 S. E. 2d 328, 330-331 (1977); and Texas, see Hawkins v. State, 605 S. W. 2d 586, 589 (Tex. Crim. App. 1980) (interpreting Tex. Penal Code Ann. §8.04 (1974)).49("We are aware that all but two of the States ... have abandoned the common-law rule ... But the question remains whether those [two] States are in violation of the Constitution").It is not surprising that many States have held fast to or resurrected the common-law rule prohibiting consideration of voluntary intoxication in the determination of mens rea, because that rule has considerable justification 3-which alone casts doubt upon the proposition that the opposite rule is a "fundamental principle." A large number of crimes, especially violent crimes, are committed by intoxicated offenders; modern studies put the numbers as high as half of all homicides, for example. See, e. g., Third Special Report to the U. S. Congress on Alcohol and Health from the Secretary of Health, Education, and Welfare 64 (1978); Note, Alcohol Abuse and the Law, 94 Harv. L. Rev. 1660, 1681-1682 (1981). Disallowing consideration of voluntary intoxication has the3 In his dissent, JUSTICE SOUTER acknowledges that there may be valid policy reasons supporting the Montana law, some of which were brought forward by States that appeared as amici, see post, at 77-78 (citing Brief for State of Hawaii et al. as Amici Curiae 16). He refuses to consider the adequacy of those reasons, however, because they were not brought forward by Montana's lawyers. We do not know why the constitutionality of Montana's enactment should be subject to the condition subsequent that its lawyers be able to guess a policy justification that satisfies this Court. Whatever they guess will of course not necessarily be the real reason the Montana Legislature adopted the provision; Montana's lawyers must speculate about that, just as we must. Our standard formulation has been: "Where ... there are plausible reasons for [the legislature's] action, our inquiry is at an end." Railroad Retirement Ed. v. Fritz, 449 U. S. 166, 179 (1980). JUSTICE SOUTER would change that to: "Where there are plausible reasons that counsel for the party supporting the legislation have mentioned." Or perhaps it is: "Where there are plausible reasons that counsel for the Government (or State) have mentioned"-so that in this case Hawaii's amicus brief would count if a Hawaiian statute were at issue. Either way, it is strange for the constitutionality of a state law to depend upon whether the lawyers hired by the State (or elected by its people) to defend the law happen to hit the right boxes on our bingo card of acceptable policy justifications.50Opinion of SCALIA, J.effect of increasing the punishment for all unlawful acts committed in that state, and thereby deters drunkenness or irresponsible behavior while drunk. The rule also serves as a specific deterrent, ensuring that those who prove incapable of controlling violent impulses while voluntarily intoxicated go to prison. And finally, the rule comports with and implements society's moral perception that one who has voluntarily impaired his own faculties should be responsible for the consequences. See, e. g., McDaniel v. State, 356 So. 2d 1151, 1160-1161 (Miss. 1978).4There is, in modern times, even more justification for laws such as §45-2-203 than there used to be. Some recent studies suggest that the connection between drunkenness and crime is as much cultural as pharmacological-that is, that drunks are violent not simply because alcohol makes them that way, but because they are behaving in accord with their learned belief that drunks are violent. See, e. g., Collins, Suggested Explanatory Frameworks to Clarify the Alcohol Use/Violence Relationship, 15 Contemp. Drug Prob. 107, 115 (1988); Critchlow, The Powers of John Barleycorn, 41 Am. Psychologist 751, 754-755 (July 1986). This not only adds additional support to the traditional view that an intoxicated criminal is not deserving of exoneration, but it suggests that juries-who possess the same learned belief as the intoxicated offender-will be too quick to accept the claim that the defendant was biologically incapable of forming the requisite4 As appears from this analysis, we are in complete agreement with the concurrence that § 45-2-203 "embodies a legislative judgment regarding the circumstances under which individuals may be held criminally responsible for their actions," post, at 57. We also agree that the statute" 'extract[s] the entire subject of voluntary intoxication from the mens rea inquiry,'" post, at 58. We believe that this judgment may be implemented, and this effect achieved, with equal legitimacy by amending the substantive requirements for each crime, or by simply excluding intoxication evidence from the trial. We address this as an evidentiary statute simply because that is how the Supreme Court of Montana chose to analyze it.51mens rea. Treating the matter as one of excluding misleading evidence therefore makes some sense.5In sum, not every widespread experiment with a procedural rule favorable to criminal defendants establishes a fundamental principle of justice. Although the rule allowing a jury to consider evidence of a defendant's voluntary intoxication where relevant to mens rea has gained considerable acceptance, it is of too recent vintage, and has not received sufficiently uniform and permanent allegiance, to qualify as fundamental, especially since it displaces a lengthy commonlaw tradition which remains supported by valid justifications today.6IIIThe Supreme Court of Montana's conclusion that Mont.Code Ann. § 45-2-203 (1995) violates the Due Process Clause purported to rest on two lines of our jurisprudence. First,5 These many valid policy reasons for excluding evidence of voluntary intoxication refute JUSTICE O'CONNOR'S claim that § 45-2-203 has no purpose other than to improve the State's likelihood of winning a conviction, see post, at 66-67, 72-73. Such a claim is no more accurate as applied to this provision than it would have been as applied to the New York law in Patterson v. New York, 432 U. S. 197 (1977), which placed upon the defendant the burden of proving the affirmative defense of extreme emotional disturbance. We upheld that New York law, even though we found it "very likely true that fewer convictions of murder would occur if New York were required to negative the affirmative defense at issue here." Id., at 209. Here, as in Patterson, any increase in the chance of obtaining a conviction is merely a consequence of pursuing legitimate penological goals.6JUSTICE O'CONNOR maintains that "to determine whether a fundamental principle of justice has been violated here, we cannot consider only the historical disallowance of intoxication evidence, but must also consider the 'fundamental principle' that a defendant has a right to a fair opportunity to put forward his defense." Post, at 71. What JUSTICE O'CONNOR overlooks, however, is that the historical disallowance of intoxication evidence sheds light upon what our society has understood by a "fair opportunity to put forward [a] defense." That "fundamental principle" has demonstrably not included the right to introduce intoxication evidence.52Opinion of SCALIA, J.it derived its view that the Due Process Clause requires the admission of all relevant evidence from the statement in Chambers v. Mississippi, 410 U. S. 284, 294 (1973), that "[t]he right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations." Respondent relies heavily on this statement, which he terms "the Chambers principle," Brief for Respondent 30.We held in Chambers that "the exclusion of [certain] critical evidence, coupled with the State's refusal to permit [petitioner] to cross-examine McDonald, denied him a trial in accord with traditional and fundamental standards of due process." 410 U. S., at 302. We continued, however:"In reaching this judgment, we establish no new principles of constitutional law. Nor does our holding signal any diminution in the respect traditionally accorded to the States in the establishment and implementation of their own criminal trial rules and procedures. Rather, we hold quite simply that under the facts and circumstances of this case the rulings of the trial court deprived Chambers of a fair trial." Id., at 302-303 (emphasis added).In other words, Chambers was an exercise in highly casespecific error correction. At issue were two rulings by the state trial court at Chambers' murder trial: denial of Chambers' motion to treat as an adverse witness one McDonald, who had confessed to the murder for which Chambers was on trial, but later retracted the confession; and exclusion, on hearsay grounds, of testimony of three witnesses who would testify that McDonald had confessed to them. We held that both of these rulings were erroneous, the former because McDonald's testimony simply was adverse, id., at 297-298, and the second because the statements "were originally made and subsequently offered at trial under circumstances that provided considerable assurance of their reliability," id.,53at 300, and were "well within the basic rationale of the exception for declarations against interest," id., at 302. Thus, the holding of Chambers-if one can be discerned from such a fact-intensive case-is certainly not that a defendant is denied "a fair opportunity to defend against the State's accusations" whenever "critical evidence" favorable to him is excluded, but rather that erroneous evidentiary rulings can, in combination, rise to the level of a due process violation.Respondent cites our decision in Crane v. Kentucky, 476 U. S. 683 (1986), as evidence that his version of the "Chambers principle" governs our jurisprudence. He highlights statements in Crane to the effect that "an essential component of procedural fairness is an opportunity to be heard," which would effectively be denied "if the State were permitted to exclude competent, reliable evidence ... when such evidence is central to the defendant's claim of innocence." Id., at 690; Brief for Respondent 31. But the very next sentence of that opinion (which respondent omits) makes perfectly clear that we were not setting forth an absolute entitlement to introduce crucial, relevant evidence: "In the absence of any valid state justification, exclusion of this kind of exculpatory evidence deprives a defendant of the basic right to have the prosecutor's case encounter and survive the crucible of meaningful adversarial testing." 476 U. S., at 690-691 (emphasis added) (internal quotation marks omitted). Our holding that the exclusion of certain evidence in that case violated the defendant's constitutional rights rested not on a theory that all "competent, reliable evidence" must be admitted, but rather on the ground that the Supreme Court of Kentucky's sole rationale for the exclusion (that the evidence "did not relate to the credibility of the confession," Crane v. Commonwealth, 690 S. W. 2d 753, 755 (1985)) was wrong. See 476 U. S., at 687. Crane does nothing to undermine the principle that the introduction of relevant evidence can be limited by the State for a "valid" reason, as it has been by Montana.54Opinion of SCALIA, J.The second line of our cases invoked by the Montana Supreme Court's opinion requires even less discussion. In re Winship, 397 U. S. 358, 364 (1970), announced the proposition that the Due Process Clause requires proof beyond a reasonable doubt of every fact necessary to constitute the charged crime, and Sandstrom v. Montana, 442 U. S. 510, 524 (1979), established a corollary, that a jury instruction which shifts to the defendant the burden of proof on a requisite element of mental state violates due process. These decisions simply are not implicated here because, as the Montana court itself recognized, "[t]he burden is not shifted" under § 45-2203. 272 Mont., at 124, 900 P. 2d, at 266. The trial judge instructed the jury that "[t]he State of Montana has the burden of proving the guilt of the Defendant beyond a reasonable doubt," App. to Pet. for Cert. 27a, and that "[a] person commits the offense of deliberate homicide if he purposely or knowingly causes the death of another human being," id., at 28a. Thus, failure by the State to produce evidence of respondent's mental state would have resulted in an acquittal. That acquittal did not occur was presumably attributable to the fact, noted by the Supreme Court of Montana, that the State introduced considerable evidence from which the jury might have concluded that respondent acted "purposely" or "knowingly." See 272 Mont., at 122, 900 P. 2d, at 265. For example, respondent himself testified that, several hours before the murders, he had given his handgun to Pavola and asked her to put it in the glove compartment of Christenson's car. Ibid.; 5 Tr. 1123. That he had to retrieve the gun from the glove compartment before he used it was strong evidence that it was his "conscious object" to commit the charged crimes; as was the execution-style manner in which a single shot was fired into the head of each victim.Recognizing that Sandstrom is not directly on point, the Supreme Court of Montana described § 45-2-203 as a burden-reducing, rather than burden-shifting, statute. 27255Mont., at 122-123, 124, 900 P. 2d, at 265, 266. This obviously was not meant to suggest that the statute formally reduced the burden of proof to clear and convincing, or to a mere preponderance; there is utterly no basis for that, neither in the text of the law nor in the jury instruction that was given. What the court evidently meant is that, by excluding a significant line of evidence that might refute mens rea, the statute made it easier for the State to meet the requirement of proving mens rea beyond a reasonable doubt-reduced the burden in the sense of making the burden easier to bear. But any evidentiary rule can have that effect. "Reducing" the State's burden in this manner is not unconstitutional, unless the rule of evidence itself violates a fundamental principle of fairness (which, as discussed, this one does not). We have "reject[ed] the view that anything in the Due Process Clause bars States from making changes in their criminal law that have the effect of making it easier for the prosecution to obtain convictions." McMillan v. Pennsylvania, 477 U. S. 79, 89, n. 5 (1986).Finally, we may comment upon the Montana Supreme Court's citation of the following passage in Martin v. Ohio, 480 U. S. 228 (1987), a case upholding a state law that placed on the defendant the burden of proving self-defense by a preponderance of the evidence:"It would be quite different if the jury had been instructed that self-defense evidence could not be considered in determining whether there was a reasonable doubt about the State's case, i. e., that self-defense evidence must be put aside for all purposes unless it satisfied the preponderance standard. Such an instruction would relieve the State of its burden and plainly run afoul of [In rei Winship's mandate. The instructions in this case ... are adequate to convey to the jury that all of the evidence, including the evidence going to selfdefense, must be considered in deciding whether there was a reasonable doubt about the sufficiency of the56GINSBURG, J., concurring in judgmentState's proof of the elements of the crime." Id., at 233234 (citation omitted).See also 272 Mont., at 122-123, 900 P. 2d, at 265. This passage can be explained in various ways-e. g., as an assertion that the right to have a jury consider self-defense evidence (unlike the right to have a jury consider evidence of voluntary intoxication) is fundamental, a proposition that the historical record may support. But the only explanation needed for present purposes is the one given in Kokkonen v. Guardian Life Ins. Co., 511 U. S. 375, 379 (1994): "It is to the holdings of our cases, rather than their dicta, that we must attend." If the Martin dictum means that the Due Process Clause requires all relevant evidence bearing on the elements of a crime to be admissible, the decisions we have discussed show it to be incorrect.***"The doctrines of actus reus, mens rea, insanity, mistake, justification, and duress have historically provided the tools for a constantly shifting adjustment of the tension between the evolving aims of the criminal law and changing religious, moral, philosophical, and medical views of the nature of man. This process of adjustment has always been thought to be the province of the States." Powell v. Texas, 392 U. S. 514, 535-536 (1968) (plurality opinion). The people of Montana have decided to resurrect the rule of an earlier era, disallowing consideration of voluntary intoxication when a defendant's state of mind is at issue. Nothing in the Due Process Clause prevents them from doing so, and the judgment of the Supreme Court of Montana to the contrary must be reversed.It is so ordered

OCTOBER TERM, 1995SyllabusMONTANA v. EGELHOFFCERTIORARI TO THE SUPREME COURT OF MONTANA No. 95-566. Argued March 20, 1996-Decided June 13, 1996On trial for two counts of deliberate homicide-defined by Montana law as "purposely" or "knowingly" causing another's death-respondent claimed that extreme intoxication had rendered him physically incapable of committing the murders and accounted for his inability to recall the events of the night in question. After being instructed, pursuant to Mont. Code Ann. § 45-2-203, that respondent's "intoxicated condition" could not be considered "in determining the existence of a mental state which is an element of the offense," the jury found respondent guilty. In reversing, the Supreme Court of Montana reasoned that respondent had a right, under the Due Process Clause, to present and have the jury consider "all relevant evidence" to rebut the State's evidence on all elements of the offense charged, and that evidence of his voluntary intoxication was "clearly relevant" to the issue whether he acted knowingly and purposely. Because § 45-2-203 prevented the jury from considering that evidence, the court concluded that the State had been relieved of part of its burden of proof and that respondent had therefore been denied due process.Held: The judgment is reversed.272 Mont. 114, 900 P. 2d 260, reversed.JUSTICE SCALIA, joined by THE CHIEF JUSTICE, JUSTICE KENNEDY, and JUSTICE THOMAS, concluded that § 45-2-203 does not violate the Due Process Clause. Pp.41-56.(a) The State Supreme Court's proposition that the Due Process Clause guarantees the right to introduce all relevant evidence is indefensible. See, e. g., Taylor v. Illinois, 484 U. S. 400, 410; Fed. Rule Evid. 403; Fed. Rule Evid. 802. The Clause does place limits upon restriction of the right to introduce evidence, but only where the restriction "offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." See Patterson v. New York, 432 U. S. 197,201-202. Respondent has failed to meet the heavy burden of establishing that a defendant's right to have a jury consider voluntary intoxication evidence in determining whether he possesses the requisite mental state is a "fundamental principle of justice." The primary guide in making such a determination, historical practice, gives respondent little support. It was firmly established at common law that a defendant's voluntary intoxication provided neither an "excuse"38Syllabusnor a "justification" for his crimes; the common law's stern rejection of inebriation as a defense must be understood as also precluding a defendant from arguing that, because of his intoxication, he could not have possessed the mens rea necessary to commit the crime. The justifications for this common-law rule persist to this day, and have only been strengthened by modern research. Although a rule allowing a jury to consider evidence of a defendant's voluntary intoxication where relevant to mens rea has gained considerable acceptance since the 19th century, it is of too recent vintage, and has not received sufficiently uniform and permanent allegiance to qualify as fundamental, especially since it displaces a lengthy common-law tradition which remains supported by valid justifications. Pp. 41-51.(b) None of this Court's cases on which the Supreme Court of Montana's conclusion purportedly rested undermines the principle that a State can limit the introduction of relevant evidence for a "valid" reason, as Montana has. The Due Process Clause does not bar States from making changes in their criminal law that have the effect of making it easier for the prosecution to obtain convictions. See McMillan v. Pennsylvania, 477 U. S. 79, 89, n. 5. Pp. 51-56.JUSTICE GINSBURG concluded that § 45-2-203 should not be categorized as simply an evidentiary rule. Rather, § 45-2-203 embodies a legislative judgment regarding the circumstances under which individuals may be held criminally responsible for their actions. The provision judges equally culpable a person who commits an act stone sober, and one who engages in the same conduct after voluntary intoxication has reduced the actor's capacity for self-control. Comprehended as a measure redefining mens rea, § 45-2-203 encounters no constitutional shoal. States have broad authority to define the elements of criminal offenses in light of evolving perceptions of the extent to which moral culpability should be a prerequisite to conviction of a crime. Defining mens rea to eliminate the exculpatory value of voluntary intoxication does not offend a fundamental principle of justice, given the lengthy common-law tradition, and the adherence of a significant minority of the States to that position today. Pp. 56-61.SCALIA, J., announced the judgment of the Court and delivered an opinion, in which REHNQUIST, C. J., and KENNEDY and THOMAS, JJ., joined. GINSBURG, J., filed an opinion concurring in the judgment, post, p. 56. O'CONNOR, J., filed a dissenting opinion, in which STEVENS, SOUTER, and BREYER, JJ., joined, post, p. 61. SOUTER, J., filed a dissenting opinion, post, p. 73. BREYER, J., filed a dissenting opinion, in which STEVENS, J., joined, post, p. 79.39Full Text of Opinion

1989_88-1260

STEVENS, J., filed a dissenting opinion., post, p. 495 U. S. 674.JUSTICE KENNEDY delivered the opinion of the Court.At issue here is whether the home office of a United States bank is obligated to use its general assets to repay a Eurodollar deposit made at one of its foreign branches, after the foreign country's government has prohibited the branch from making repayment out of its own assets.IThe case arises from a transaction in what is known in the banking and financial communities as the Eurodollar market. As the District Court defined the term, Eurodollars are Page 495 U. S. 663 United States dollars that have been deposited with a banking institution located outside the United States, with a corresponding obligation on the part of the banking institution to repay the deposit in United States dollars. See App. to Pet. for Cert. 42a; P. Oppenheim, International Banking 243 (5th ed. 1987). The banking institution receiving the deposit can be either a foreign branch of a United States bank or a foreign bank.A major component of the Eurodollar market is interbank trading. In a typical interbank transaction in the Eurodollar market, the depositing bank (Bank A) agrees by telephone or telex, or through a broker, to place a deposit denominated in United States dollars with a second bank (Bank X). For the deposit to be a Eurodollar deposit, Bank X must be either a foreign branch of a United States bank or a foreign bank; Bank A, however, can be any bank, including one located in the United States. To complete the transactions, most banks that participate in the interbank trading market utilize correspondent banks in New York City, with whom they maintain, directly or indirectly, accounts denominated in United States dollars. In this example, the depositor bank, Bank A, orders its correspondent bank in New York (Bank B) to transfer United States dollars from Bank A's account to Bank X's account with Bank X's New York correspondent bank (Bank Y). The transfer of funds from Bank B to Bank Y is accomplished by means of a wire transfer through a clearing mechanism located in New York City and known as the Clearing House Interbank Payments System, or "CHIPS." See Scanlon, Definitions and Mechanics of Eurodollar Transactions, in The Eurodollar 16, 24-25 (H. Prochnow ed. 1970); Brief for New York Clearing House Association et al. as Amici Curiae 4. Repayment of the funds at the end of the deposit term is accomplished by having Bank Y transfer funds from Bank X's account to Bank B, through the CHIPS system, for credit to Bank A's account. Page 495 U. S. 664The transaction at issue here follows this pattern. Respondent Wells Fargo Asia Limited (WFAL) is a Singapore-chartered bank wholly owned by Wells Fargo Bank, N.A., a bank chartered by the United States. Petitioner Citibank, N.A. (Citibank), also a United States-chartered bank, operates a branch office in Manila, Philippines (Citibank/Manila). On June 10, 1983, WFAL agreed to make two $1 million time deposits with Citibank/Manila. The rate at which the deposits would earn interest was set at 10%, and the parties agreed that the deposits would be repaid on December 9 and 10, 1983. The deposits were arranged by oral agreement through the assistance of an Asian money broker, which made a written report to the parties that stated, inter alia:"Pay: Citibank, N.A. New York Account Manila""Repay: Wells Fargo International, New York Account Wells Fargo Asia Ltd., Singapore Account #003023645."852 F.2d 657, 658-659 (CA2 1988). The broker also sent WFAL a telex containing the following "instructions:""Settlement -- Citibank NA NYC AC Manila""Repayment -- Wells Fargo Bk Intl NYC Ac Wells Fargo Asia Ltd. Sgp No 003-023645."Id. at 659. That same day, the parties exchanged telexes confirming each of the two deposits. WFAL's telexes to Citibank/Manila read:"We shall instruct Wells Fargo Bk Int'l New York our correspondent please pay to our a/c with Wells Fargo Bk Int'l New York to pay to Citibank NA customer's correspondent USD 1,000,000."Ibid. The telexes from Citibank/Manila to WFAL read:"Please remit US Dlr 1,000,000 to our account with Citibank New York. At maturity we remit US Dlr 1,049,444.44 to your account with Wells Fargo Bank Intl Corp NY through Citibank New York."Ibid. Page 495 U. S. 665A few months after the deposit was made, the Philippine government issued a Memorandum to Authorized Agent Banks (MAAB 47) which provided in relevant part:"'Any remittance of foreign exchange for repayment of principal on all foreign obligations due to foreign banks and/or financial institutions, irrespective of maturity, shall be submitted to the Central Bank [of the Philippines] thru the Management of External Debt and Investment Accounts Department (MEDIAD) for prior approval.'"Ibid. According to the Court of Appeals,"[a]s interpreted by the Central Bank of the Philippines, this decree prevented Citibank/Manila, an 'authorized agent bank' under Philippine law, from repaying the WFAL deposits with its Philippine assets, i.e., those assets not either deposited in banks elsewhere or invested in non-Philippine enterprises."Ibid. As a result, Citibank/Manila refused to repay WFAL's deposits when they matured in December, 1983.WFAL commenced the present action against Citibank in the United States District Court for the Southern District of New York, claiming that Citibank in New York was liable for the funds that WFAL deposited with Citibank/Manila. While the lawsuit was pending, Citibank obtained permission from the Central Bank of the Philippines to repay its Manila depositors to the extent that it could do so with the non-Philippine assets of the Manila branch. It paid WFAL $934,000; the remainder of the deposits, $1,066,000, remains in dispute. During the course of this litigation, Citibank/ Manila, with the apparent consent of the Philippine government, has continued to pay WFAL interest on the outstanding principal. See App. to Pet. for Cert. 48a.After a bench trial on the merits, the District Court accepted WFAL's invitation to assume that Philippine law governs the action. The court saw the issue to be whether, under Philippine law, a depositor with Citibank/Manila may look to assets booked at Citibank's non-Philippine offices for Page 495 U. S. 666 repayment of the deposits. After considering affidavits from the parties, it concluded (1) that, under Philippine law, an obligation incurred by a branch is an obligation of the bank as a whole; (2) that repayment of WFAL's deposits with assets booked at Citibank offices other than Citibank/Manila would not contravene MAAB 47; and (3) that Citibank therefore was obligated to repay WFAL, even if it could do so only from assets not booked at Citibank/Manila. Id. at 31a-35a. It entered judgment for WFAL, and Citibank appealed.A panel of the United States Court of Appeals for the Second Circuit remanded the case to the District Court to clarify the basis for its judgment. The Second Circuit ordered the District Court to make supplemental findings of fact and conclusions of law on the following matters:"(a) Whether the parties agreed as to where the debt could be repaid, including whether they agreed that the deposits were collectible only in Manila.""(b) If there was an agreement, what were its essential terms?""(c) Whether Philippine law (other than MAAB 47) precludes or negates an agreement between the parties to have the deposits collectible outside of Manila.""(d) If there is no controlling Philippine law referred to in (c) above, what law does control?"Id. at 26a.In response to the first query, the District Court distinguished the concepts of repayment and collection, defining repayment as "refer[ring] to the location where the wire transfers effectuating repayment at maturity were to occur," and collection as"refer[ring] to the place or places where plaintiff was entitled to look for satisfaction of its deposits in the event that Citibank should fail to make the required wire transfers at the place of repayment."Id. at 14a. It concluded that the parties' confirmation slips established an agreement that repayment was to occur in New York, and that there was neither an express agreement nor one that Page 495 U. S. 667 could be implied from custom or usage in the Eurodollar market on the issue of where the deposits could be collected. In response to the second question, the court stated that "[t]he only agreement relating to collection or repayment was that repayment would occur in New York." Id. at 18a. As to third query, the court stated that it knew of no provision of Philippine law that barred an agreement making WFAL's deposits collectible outside Manila. Finally, in response to the last query, the District Court restated the issue in the case as follows:"Hence, the dispute in this case . . . boils down to one question: is Citibank obligated to use its worldwide assets to satisfy plaintiff's deposits? In other words, the dispute is not so much about where repayment physically was to be made or where the deposits were collectible, but rather which assets Citibank is required to use in order to satisfy its obligation to plaintiff. As we have previously found that the contract was silent on this issue, we interpret query (d) as imposing upon us the task . . . of deciding whether New York or Philippine law controls the answer to that question."Id. at 19a. The District Court held that, under either New York or federal choice-of-law rules, New York law should be applied. After reviewing New York law, it held that Citibank was liable for WFAL's deposits with Citibank/Manila, and that WFAL could look to Citibank's worldwide assets for satisfaction of its deposits.The Second Circuit affirmed, but on different grounds. Citing general banking law principles, the Court of Appeals reasoned that, in the ordinary course, a party who makes a deposit with a foreign branch of a bank can demand repayment of the deposit only at that branch. In the court's view, however, these same principles established that this "normal limitation" could be altered by an agreement between the bank and the depositor:"If the parties agree that repayment of a deposit in a foreign bank or branch may occur at another Page 495 U. S. 668 location, they authorize demand and collection at that other location."852 F.2d at 660. The court noted that the District Court had found that Citibank had agreed to repay WFAL's deposits in New York. It concluded that the District Court's finding was not clearly erroneous under Federal Rule of Civil Procedure 52(a), and held that, as a result, WFAL was entitled "to collect the deposits out of Citibank assets in New York." 852 F.2d at 661.We granted certiorari. 493 U.S. 990 (1989). We decide that the factual premise on which the Second Circuit relied in deciding the case contradicts the factual determinations made by the District Court, determinations that are not clearly erroneous. We vacate the judgment and remand the case to the Court of Appeals for further consideration of the additional legal questions in the case.IILittle need be said respecting the operation or effect of the Philippine decree at this stage of the case, for no party questions the conclusion reached by both the District Court and the Court of Appeals that Philippine law does not bar the collection of WFAL's deposits from the general assets of Citibank in the State of New York. See 852 F.2d at 660-661; App. to Pet. for Cert. 18a. The question, rather, is whether Citibank is obligated to allow collection in New York, and on this point two principal theories must be examined. The first is that there was an agreement between the parties to permit collection in New York, or indeed at any place where Citibank has assets, an agreement implied from all the facts in the case as being within the contemplation of the parties. A second, and alternative, theory for permitting collection is that, assuming no such agreement, there is a duty to pay in New York in any event, a duty that the law creates when the parties have not contracted otherwise. See 3 A. Corbin, Contracts § 561, pp. 276-277 (1960). Page 495 U. S. 669The Court of Appeals appears to have relied upon the first theory we have noted, adopting the premise that the parties did contract to permit recovery from the general assets of Citibank in New York. Yet the District Court had made it clear that there is a distinction between an agreement on "repayment," which refers to the physical location for transacting discharge of the debt, and an agreement respecting "collection," which refers to the location where assets may be taken to satisfy it, and, in quite specific terms, it found that the only agreement the parties made referred to repayment.The Court of Appeals, while it said that this finding was not clearly erroneous, appears to have viewed repayment and collection as interchangeable concepts, not divisible ones. It concluded that the agreement as to where repayment could occur constituted also an agreement as to which bank assets the depositor could look to for collection. The strongest indication that the Court of Appeals was interpreting the District Court's findings in this manner is its answer to the argument, made by the United States as amicus curiae, that the home office of a bank should not bear the risk of foreign restrictions on the payment of assets from the foreign branch where a deposit has been placed, unless it makes an express agreement to do so. The court announced that "[o]ur affirmance in the present case is based on the district court's finding of just such an agreement." 852 F. 2d, at 661 (emphasis added).That the Court of Appeals based its ruling on the premise of an agreement between the parties is apparent as well from the authorities upon which it relied to support its holding. The court cited three cases for the proposition that an agreement to repay at a particular location authorizes the depositor to collect the deposits at that location, all of which involve applications of the act of state doctrine: Allied Bank International v. Banco Credito Agricola de Cartago, 757 F.2d 516 (CA2), cert. dism'd, 473 U.S. 934 (1985); Garcia v. Chase Manhattan Bank, N.A., 735 F.2d 645, 650-651 (CA2 1984); Page 495 U. S. 670 and Braka v. Bancomer, S.N.C., 762 F.2d 222, 225 (CA2 1985). Each of these three cases turns upon the existence, or nonexistence, of an agreement for collection. In Garcia and Allied Bank, the agreement of the parties to permit collection at a location outside of the foreign country made the legal action of the foreign country irrelevant. See Garcia, 735 F.2d at 646 (agreement between the parties was that "Chase's main office in New York would guarantee the certificate [of deposit] and that [the depositors] could be repaid by presenting the certificate at any Chase branch worldwide"); id. at 650 (purpose of the agreement was "to ensure that, no matter what happened in Cuba, including seizure of the debt, Chase would still have a contractual obligation to pay the depositors upon presentation of their CDs"); Allied Bank, supra, at 522 (agreement between the parties was that Costa Rican banks' obligation to repay various loans in New York "would not be excused in the event that Central Bank [of Costa Rica] failed to provide the necessary United States dollars for payment"). In Braka, the agreement between the parties was that repayment and collection would be permitted only in the foreign country, and so the foreign law controlled. See 762 F.2d at 224-225 (specifically distinguishing Garcia on the ground that the bank had not guaranteed repayment of the deposits outside of Mexico). By its reliance upon these cases, the Court of Appeals, it seems to us, must have been relying upon the existence of an agreement between Citibank and WFAL to permit collection in New York. As noted above, however, this premise contradicts the express finding of the District Court.Under Federal Rule of Civil Procedure 52(a), the Court of Appeals is permitted to reject the District Court's findings only if those findings are clearly erroneous. As the Court of Appeals itself acknowledged, the record contains ample support for the District Court's finding that the parties agreed that repayment, defined as the wire transfers effecting the transfer of funds to WFAL when its deposits matured, would Page 495 U. S. 671 take place in New York. The confirmation slips exchanged by the parties are explicit: the transfer of funds upon maturity was to occur through wire transfers made by the parties' correspondent banks in New York. See supra at 495 U. S. 664.As to collection, the District Court found that neither the parties' confirmation slips nor the evidence offered at trial with regard to whether "an agreement concerning the place of collection could be implied from custom and usage in the international banking field" established an agreement respecting collection. See App. to Pet. for Cert. 16a-17a. Upon review of the record, we hold this finding, that no such implied agreement existed based on the intent of the parties, was not clearly erroneous. The confirmation slips do not indicate an agreement that WFAL could collect its deposits from Citibank assets in New York; indeed, Citibank/Manila's confirmation slip, stating that "[a]t maturity we remit US Dlr 1,049,444.44 to your account with Wells Fargo Bank Intl Corp NY through Citibank New York," see supra at 495 U. S. 664 (emphasis added), tends to negate the existence of any such agreement. The telexes from the money broker who arranged the deposits speak in terms of repayment, and indicate no more than that repayment was to be made to WFAL's account with its correspondent bank in New York; they do not indicate any agreement about where WFAL could collect its deposits in the event that Citibank/Manila failed to remit payment upon maturity to this account.Nor does the evidence contradict the District Court's conclusion that the parties, in this particular case, failed to establish a relevant custom or practice in the international banking community from which it could be inferred that the parties had a tacit understanding on the point. Citibank's experts testified that the common understanding in the banking community was that the higher interest rates offered for Eurodollar deposits, in contrast to dollar deposits with United States banks, reflected in part the fact that the deposits were not subject to reserve and insurance requirements Page 495 U. S. 672 imposed on domestic deposits by United States banking law. This could only be the case, argues Citibank, if the deposits were "payable only" outside of the United States, as required by 38 Stat. 270, as amended, 12 U.S.C. § 461(b)(6), and 64 Stat. 873, as amended, 12 U.S.C. § 1813(1)(5). It argues further that higher rates reflected the depositor's assumption of foreign "sovereign risk," defined as the risk that actions by the foreign government having legal control over the foreign branch and its assets would render the branch unable to repay the deposit. See, e.g., App. 354-367 (testimony of Ian H. Giddy).WFAL's experts, on the other hand, testified that the identical interest rates being offered for Eurodollar deposits in both Manila and London at the time the deposits were made, despite the conceded differences in sovereign risk between the two locations, reflected an understanding that the home office of a bank was liable for repayment in the event that its foreign branch was unable to repay for any reason, including restrictions imposed by a foreign government. See, e.g., id. at 270-272 (testimony of Gunter Dufey).A fair reading of all of the testimony supports the conclusion that, at least in this trial, on the issue of the allocation of sovereign risk, there was a wide variance of opinion in the international banking community. We cannot say that we are left with "the definite and firm conviction" that the District Court's findings are erroneous. United States v. United States Gypsum Co., 333 U. S. 364, 333 U. S. 395 (1948). Because the Court of Appeals' holding relies upon contrary factual assumptions, the judgment for WFAL cannot be affirmed under the reasoning used by that court.Given the finding of the District Court that there was no agreement between the parties respecting collection from Citibank's general assets in New York, the question becomes whether collection is permitted nonetheless by rights and duties implied by law. As is its right, see Dandridge v. Williams, 397 U. S. 471, 397 U. S. 475-476, and n. 6 (1970), WFAL seeks Page 495 U. S. 673 to defend the judgment below on the ground that, under principles of either New York or Philippine law, Citibank was obligated to make its general assets available for collection of WFAL's deposits. See Brief for Respondent 18, 23, 30-49. It is unclear from the opinion of the Court of Appeals which law it found to be controlling, and we decide to remand the case for the Court of Appeals to determine which law applies, and the content of that law. See Thigpen v. Roberts, 468 U. S. 27, 468 U. S. 32 (1984); Dandridge, supra, at 397 U. S. 475-476, and n. 6.One of WFAL's contentions is that the Court of Appeals' opinion can be supported on the theory that it is based upon New York law. We do not think this is a fair or necessary construction of the opinion. The Court of Appeals placed express reliance on its own opinion in Garcia v. Chase Manhattan Bank, N.A., 735 F.2d 645 (CA2 1984), without citing or discussing Perez v. Chase Manhattan Bank, N.A., 61 N.Y.2d 460, 463 N.E.2d 5 (1984). In that case, the New York Court of Appeals was explicit in pointing out that its decision was in conflict with that reached two days earlier by the Second Circuit in Garcia, supra, a case that the Perez court deemed "similar on its facts." See 61 N. Y. 2d, at 464, n. 3, 463 N. E. 2d, at 9, n. 3. Given this alignment of authorities, we are reluctant to interpret the Court of Appeals' decision as resting on principles of state law. The opinion of the Court of Appeals, moreover, refers to "general banking law principles" and "United States law," 852 F. 2d, at 660; whether this is the semantic or legal equivalent of the law of New York is for the Court of Appeals to say in the first instance.Alternatively, if the Court of Appeals, based upon its particular expertise in the law of New York and commercial matters generally, is of the view that the controlling rule is supplied by Philippine law or, as Citibank would have it, by a federal common law rule respecting bank deposits, it should make that determination, subject to any further review we deem appropriate. In view of our remand, we find Page 495 U. S. 674 it premature to consider the other contentions of the parties respecting the necessity for any rule of federal common law, or the preemptive effect of federal statutes and regulations on bank deposits and reserves. See 12 U.S.C. §§ 461(b)(6), 1813(1)(5)(a); 12 CFR § 204.128(c) (1990). All of these matters, of course, may be addressed by the Court of Appeals if necessary for a full and correct resolution of the case.The judgment of the Court of Appeals is vacated, and the case remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtCitibank, N.A. v. Wells Fargo Asia Ltd., 495 U.S. 660 (1990)Citibank, N.A. v. Wells Fargo Asia Ltd.No. 88-1260Argued March 19, 1990Decided May 29, 1990495 U.S. 660SyllabusRespondent Wells Fargo Asia Limited (WFAL), a Singapore-chartered bank wholly owned by a United States-chartered bank, agreed to make two time deposits in Eurodollars -- i.e., United States dollars that have been deposited with a banking institution located outside the country, with a corresponding obligation on the part of that institution to repay the deposits in United States dollars -- with Citibank/Manila, a branch of petitioner Citibank, N.A. (Citibank), which is chartered in the United States. The parties received telexes detailing the deposits' terms from the money broker who had arranged them. The parties also exchanged slips confirming the deposits and stating that repayment was to occur in New York. Citibank/Manila refused to repay the deposits when they matured because a Philippine government decree prevented it from repaying them with its Philippine assets. WFAL commenced suit in the District Court, claiming that Citibank in New York was liable for the funds deposited with Citibank/Manila. Finding that there was a distinction between "repayment," which refers to the physical location for transacting discharge of the debt, and "collection," which refers to the location where assets may be taken to satisfy the debt, the court determined that the parties' confirmation slips established an agreement to repay the deposits in New York, but that there was neither an express agreement nor one that could be implied from custom or usage in the Eurodollar market on the issue of where the deposits could be collected; that no provision of Philippine law barred an agreement making WFAL's deposits collectible outside Manila; that, in the absence of such an agreement, New York law, rather than Philippine law, applied and required that Citibank be found liable for WFAL's deposits with Citibank/Manila; and that WFAL could look to Citibank's worldwide assets for satisfaction of its deposits. T he Court of Appeals affirmed on different grounds. It concluded that the District Court's finding that the parties had agreed to repay WFAL's deposits in New York was not clearly erroneous under Federal Rule of Civil Procedure 52(a) and reasoned that, under general banking law principles, if parties agree that repayment of a foreign bank deposit may occur at another location, they authorize demand and collection of the deposit at that location. Thus, it held that Page 495 U. S. 661 WFAL was entitled to collect its deposits out of Citibank's New York assets.Held:1. The Court of Appeals' factual premise that the parties agreed to permit collection from Citibank's New York assets contradicts the District Court's factual determinations, which are not clearly erroneous. Pp. 495 U. S. 668-672.(a) The District Court distinguished an agreement on "repayment" from one respecting "collection" and, in quite specific terms, found that the only agreement the parties made referred to repayment. However, while saying that this finding was not clearly erroneous, the Court of Appeals appears to have viewed repayment and collection as interchangeable concepts, not divisible ones. In responding to an argument that a bank's home office should not bear the risk of foreign restrictions on the payment of assets from the foreign branch where a deposit has been placed, unless it has an express agreement to do so, the Court of Appeals stated that its affirmance of the District Court's order was based on just such an agreement. Furthermore, to support its holding, the court relied on authorities that all turned upon the existence, or nonexistence, of an agreement for collection. Pp. 495 U. S. 668-670.(b) The District Court's findings -- that the parties agreed on repayment, but not collection -- were not clearly erroneous. While the confirmation slips are explicit that repayment would take place in New York, they do not indicate an agreement that WFAL could collect its deposits from Citibank's New York assets. In fact, their language seems to negate such an agreement's existence. The money broker's telexes also speak in terms of repayment, and do not indicate any agreement about where WFAL could collect its deposits if Citibank/Manilla failed to remit repayment. Moreover, a fair reading of the contradictory testimony at trial supports the conclusion that the parties failed to establish a relevant custom or practice in the international banking community from which it could be inferred that they had a tacit understanding on this point. Pp. 495 U. S. 670-672.2. The case is remanded for the Court of Appeals to determine whether, in the absence of an agreement, collection is permitted by rights and duties implied by law. On remand, the court must determine which law applies and the content of that law. It is not a fair or necessary construction of the Court of Appeals' opinion to say that it relies on state law. Alternatively, if the Court of Appeals is of the view that the controlling rule is supplied by Philippine law or by the federal common law rule respecting bank deposits, it should make that determination, subject to further review deemed appropriate by this Court. Thus, it is premature to consider the parties' other contentions respecting Page 495 U. S. 662 the necessity for any rule of federal common law or the preemptive effect of federal statutes and regulations on bank deposits and reserves. Pp. 495 U. S. 672-674.852 F.2d 657, vacated and remanded.KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and BRENNAN, WHITE, MARSHALL, BLACKMUN, O'CONNOR, and SCALIA, JJ., joined. REHNQUIST, C.J., filed a concurring opinion, post, p. 495 U. S. 674. STEVENS, J., filed a dissenting opinion., post, p. 495 U. S. 674.

1979_79-192

MR. JUSTICE BLACKMUN delivered the opinion of the Court.This case presents the question whether, under Title VII of the Civil Rights Act of 1964, a federal court may allow the prevailing party attorney's fees for legal services performed in prosecuting an employment discrimination claim in state administrative and judicial proceedings that Title VII requires federal claimants to invoke.IRespondent Cidni Carey, in August 1974, applied for work as a cocktail waitress with petitioner New York Gaslight Club, Inc. After an interview, she was advised that no position was available.The following January, respondent filed a charge with the Equal Employment Opportunity Commission (EEOC) alleging that petitioners, the Club and its manager, had denied her a position because of her race. App. to Brief for Respondent a1-a3. As required by § 706(c) of Title VII of the Civil Page 447 U. S. 57 Rights Act of 1964, 78 Stat. 259, as redesignated, 86 Stat. 104, 42 U.S.C. § 2000e-5(c), respondent's complaint was forwarded to the New York State Division of Human Rights (Division).In May, 1975, after an investigation during which respondent was represented by counsel, [Footnote 1] the Division found probable cause to believe that petitioners had engaged in an unlawful discriminatory practice. Efforts at conciliation failed, and the Division, pursuant to N.Y.Exec.Law § 297(4)(a) (McKinney Supp. 1979), recommended that a public hearing be held.Counsel for respondent wrote to the EEOC on May 20, advising the Commission that respondent was proceeding in the Division. He asked that the Commission "reassume" jurisdiction over the claim so that, if necessary, respondent could obtain a right-to-sue letter at an appropriate time. On May 22, the EEOC responded, stating that an investigator would be assigned to respondent's matter as soon as possible.The state administrative hearing was held on two separate days in late 1975 and early 1976. Both respondent and petitioners were represented by counsel. App. 68. No attorney for the State appeared. On August 13, 1976, the hearing examiner found that petitioners had discriminated against respondent because she is black. Id. at 70. Petitioners were ordered to offer respondent employment as a cocktail waitress and to pay her back wages from August, 1974. Id. at 772. No attorney's fee was awarded.Petitioners appealed to the New York State Human Rights Appeal Board, an agency established to hear appeals from orders of the Division. N.Y.Exec.Law § 297-a (McKinney 1972 and Supp. 1979). The Board held a hearing in December, 1976, at which counsel for petitioners, respondent, and the Division appeared. Page 447 U. S. 58Meanwhile, EEOC proceedings had begun. Giving due weight to the state finding of probable cause, see § 70(b), 42 U.S.C. § 2000e-5(b), the EEOC determined that there was reasonable cause to believe petitioners had violated Title VII. The EEOC's attempts at conciliation also failed. The Commission's General Counsel chose not to sue, and, as required by § 706(f)(1) , § 2000e-5(f)(1), the EEOC issued respondent a right-to-sue letter. This was issued on July 13, 1977; respondent, under § 706(f)(1), then had 90 days to file a Title VII action in federal district court.On August 26, the Appeal Board confirmed the Division's order. Petitioners immediately appealed the Board's decision to the New York Supreme Court. The Division cross-petitioned for enforcement of its order.On September 30, respondent filed suit in the United States District Court for the Southern District of New York, asserting claims under the Civil Rights Act of 1866, 42 U.S.C. § 1981, Title VII, and the Thirteenth Amendment. App. 29. Respondent alleged that petitioners did not hire her because she is black, and that petitioner Club had employed only four blacks as waitresses during its 2-year existence. The complaint sought a declaratory judgment that petitioners' practices were unlawful under federal law, an order requiring petitioners to hire respondent, backpay with interest, retroactive employment-related benefits, attorney's fees, and other appropriate relief. Petitioners' answer denied virtually all the allegations in the complaint and cited the pendency of the state proceedings as an affirmative defense.The Appellate Division of the New York Supreme Court, on November 3, unanimously affirmed the Appeal Board's determination. New York Gaslight Club, Inc. v. New York State Human Rights Appeal Board, 59 App.Div.2d 852, 399 N.Y.S.2d 158 (1977). Petitioners unsuccessfully moved for reargument, and then filed a motion with the New York Court of Appeals for leave to appeal. Page 447 U. S. 59On February 3, 1978, while that motion was pending, the Federal District Court held a pretrial conference, after which petitioners agreed that, if the state court denied their motion for leave to appeal, they would comply with the Division's order. App. 73. One week later, the New York Court of Appeals denied petitioners' motion. 43 N.Y.2d 951 (1978).The parties thereafter apparently agreed that the federal action could be dismissed, except for respondent's request for attorney's fees. See App. 75-79. Respondent sought an award for 82 hours of attorney's time. Of that total, 9 hours were spent in preparing and filing the EEOC charge and the federal suit, 22 hours were spent in preparing and presenting the case before the hearing examiner, 29 hours were spent in defending the Division's order before the Appeal Board and the state courts, and 22 hours were spent seeking the fee award. App. to Pet. for Cert. A39-A40.In July, 1978, the District Court dismissed respondent's complaint, App. 35, but left pending the application for attorney's fees. After further briefing, the court denied the fee request. 458 F. Supp. 79 (SDNY 1978).The District Court found the propriety of the EEOC's issuance of a right-to-sue letter while state proceedings were pending "very doubtful." Id. at 80. Although the EEOC's action had given respondent no choice but to preserve her rights by filing a complaint in federal court, the District Court ruled that the mere filing of a federal suit does not entitle an aggrieved party to attorney's fees. The court reasoned that the fortuity of a need to file a protective federal suit should not make the defendants responsible for the costs of representing the plaintiff in the state forums. Id. at 81.The District Court also relied on its conclusion that respondent "had the option of pursuing her state administrative remedies without incurring any expenses at all for legal services," since state law, N.Y.Exec.Law § 297 (4)(a) (McKinney Supp. 1978), provides that the case in support of the complaint is to be presented to the hearing examiner by one Page 447 U. S. 60 of the attorneys for the Division. 458 F. Supp. at 81. The decision in Parker v. Califano, 182 U.S.App.D.C. 322, 561 F.2d 320 (1977), upholding an award of attorney's fees for prosecution of a federal employee's Title VII claim in mandatory preliminary proceedings within the employee's agency, was distinguished on the ground that the agency did not provide an independent attorney to prosecute the complaint. 458 F. Supp. at 81.A divided panel of the United States Court of Appeals for the Second Circuit reversed. 598 F.2d 1253 (1979). The court ruled:"A complaining party who is successful in state administrative proceedings after having her complaint under Title VII referred to a state agency in accordance with the statutory scheme of that Title is entitled to recover attorney's fees in the same manner as a party who prevails in federal court."Id. at 1260. The court relied on several factors in reaching its decision. Among them were the significant role of state human rights agencies in the Title VII enforcement scheme; the statute's strong preference for administrative resolution of a discrimination complaint; the importance of providing an incentive for complete development of the administrative record; the language of the statute's fee provision; and the desirability of encouraging a complainant to retain private counsel notwithstanding participation of a Division attorney at certain points during the state proceedings.We granted certiorari, 444 U.S. 897 (1979), to consider this question that is significant to the enforcement of the antidiscrimination provisions of Title VII.IISection 706(k) of the Civil Rights Act of 1964, 78 Stat. 261, 42 U.S.C. § 2000e-5(k), provides:"In any action or proceeding under this title the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney's fee as part of the costs. "Page 447 U. S. 61The question presented is whether, in the words of the statute, respondent was the "prevailing party" in an "action or proceeding under this title." An examination of the language and history of the statute, the nature of the proceedings in which respondent participated, and the relationship of those proceedings to Title VII's enforcement mechanisms, together persuade us that Congress clearly intended to authorize awards of attorney's fees to persons in respondent's situation.The words of § 706(k) leave little doubt that fee awards are authorized for legal work done in "proceedings" other than court actions. Congress' use of the broadly inclusive disjunctive phrase "action or proceeding" indicates an intent to subject the losing party to an award of attorney's fees and costs that includes expenses incurred for administrative proceedings. This conclusion is supported by a comparison of § 706(k) with another fee provision in the same Act, namely, § 204(b) of Title II, 78 Stat. 244, 42 U.S.C. § 2000a-3(b). The pertinent language of § 204(b) is identical to that of § 706(k) except that § 204(b) permits an award only with respect to "any action commenced pursuant to this title." The two provisions were enacted contemporaneously as parts of the Civil Rights Act of 1964. The omission of the words "or proceeding" from § 204(b) is understandable, since enforcement of Title II depends solely on court actions. See Newman v. Piggie Park Enterprises, 390 U. S. 400, 390 U. S. 401 (1968). It is apparent, therefore, that the two fee provisions were carefully tailored to the enforcement scheme of each Title. It cannot be assumed that the words "or proceeding" in § 706(k) are mere surplusage.It might be argued that the words "or proceeding" authorize fee awards only for work done in federal administrative proceedings, [Footnote 2] such as those before the EEOC, but not for Page 447 U. S. 62 state administrative or state judicial proceedings. This reading at least would not render the words "or proceeding" a complete nullity. We find nothing in the statute, however, to suggest that Congress intended to draw this particular line. Rather, other provisions of the statute that interact with § 706(k); the purpose of § 706(k); the humanitarian remedial policies of Title VII; and the statute's structure of cooperation between federal and state enforcement authorities, all point to the opposite conclusion.Section 706(k) authorizes a fee award to the prevailing party in "any . . . proceeding under this title." (Emphasis added.) The same Title creates the system of deferral to state and local remedies. The statute uses the word "proceeding" to describe the state and local remedies to which complainants are required to resort. For example, § 706(c), 86 Stat. 104, provides:"[N]o charge may be filed . . . before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated. . . . If any requirement for the commencement of such proceedings is imposed by a State or local authority other than a requirement of the filing of a written and signed statement of the facts upon which the proceeding is based, the proceeding shall be deemed to have been commenced for the purposes of this subsection at the time such statement is sent. . . ."(Emphasis added) . Indeed, throughout Title VII, the word "proceeding," or its plural form, is used to refer to all the different types of proceedings in which the statute is enforced, state and federal, Page 447 U. S. 63 administrative and judicial. [Footnote 3] The conclusion that fees are authorized for work done at the state and local levels is inescapable.This Court recently examined the legislative history and purpose of § 706(k). In Christiansburg Garment Co. v. EEOC, 434 U. S. 412 (1978), it was noted that, although the legislative history of § 706(k) is "sparse," 434 U.S. at 434 U. S. 42, it is clear that one of Congress' primary purposes in enacting the section was to "make it easier for a plaintiff of limited means to bring a meritorious suit." Ibid., quoting 110 Cong.Rec. 12724 (1964) (remarks of Sen. Humphrey). Because Congress has cast the Title VII plaintiff in the role of "a private attorney general," vindicating a policy "of the highest priority," a prevailing plaintiff "ordinarily is to be awarded attorney's fees in all but special circumstances." 434 U.S. at 434 U. S. 416, 434 U. S. 417. See also Newman v. Piggie Park Enterprises, 390 U.S. at 390 U. S. 402. It is clear that Congress intended to facilitate the bringing of discrimination complaints. Permitting an attorney's fee award to one in respondent's situation furthers this goal, while a contrary rule would force the complainant to bear the costs of mandatory state and local proceedings, and thereby would inhibit the enforcement of a meritorious discrimination claim.Title VII establishes a comprehensive enforcement scheme in which state agencies are given"a limited opportunity to resolve problems of employment discrimination and thereby to make unnecessary, resort to federal relief by victims of the discrimination."Oscar Mayer Co. v. Evans, 441 U. S. 750, 441 U. S. 755 (1979). Congress envisioned that Title VII's procedures and remedies would "mes[h] nicely, logically, and coherently with the State and city legislation," and that remedying employment Page 447 U. S. 64 discrimination would be an area in which "[t]he Federal Government and the State governments could cooperate effectively." 110 Cong. Rec 7205 (1964) (remarks of Sen. Clark).Pursuant to this policy of cooperation, Title VII provides that where the unlawful employment practice is alleged to have occurred in a State or locality which has a law prohibiting the practice and in which an agency has been established to enforce that law, "no charge may be filed [with the EEOC] by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated." § 706(c). In practice, § 706(c) has resulted in EEOC's development of a referral and deferral system, which the Court approved in Love v. Pullman Co., 404 U. S. 522 (1972). When a charge is filed with the EEOC prior to exhaustion of state or local remedies, the Commission refers the complaint to the appropriate local agency. The EEOC then holds the complaint in "suspended animation." Id. at 404 U. S. 526. Upon termination of the state proceedings or expiration of the 60-day deferral period, whichever comes first, the EEOC automatically assumes concurrent jurisdiction of the complaint. Ibid. [Footnote 4]Of course, the "ultimate authority" to secure compliance with Title VII resides in the federal courts. Alexander v. Gardner-Denver Co., 415 U. S. 36, 415 U. S. 11 15 (1974). The statute Page 447 U. S. 65 authorizes civil enforcement actions by both the EEOC and the private plaintiff. After the deferral period, the EEOC assumes jurisdiction, and, "as promptly as possible," it determines whether there is probable cause to believe that the charge is true. § 706(b). After an additional 30 days, the EEOC is authorized to bring an action, in which the complainant has an absolute right to intervene. § 706(f). If the Commission does not file suit, or enter into a conciliation agreement to which the complainant is a party, within 180 days after it reassumes jurisdiction, it must issue a "right to sue" letter notifying the complainant of his right to bring an action within 90 days. Ibid. [Footnote 5]It is clear from this scheme of interrelated and complementary state and federal enforcement that Congress viewed proceedings before the EEOC and in federal court as supplements to available state remedies for employment discrimination. Initial resort to state and local remedies is mandated, and recourse to the federal forums is appropriate only when the State does not provide prompt or complete relief. See Alexander v. Gardner-Denver Co., 415 U.S. at 415 U. S. 48-50.The construction of § 706(k) that petitioners advocate clashes with this congressional design. Complainants unable to recover fees in state proceedings may be expected to wait out the 60-day deferral period, while focusing efforts on obtaining federal relief. See n 6, infra. Only authorization of fee awards ensures incorporation of state procedures as a meaningful part of the Title VII enforcement scheme.The District Court felt that granting a fee award to respondent would be a "windfall" based on the unforeseeable fortuity that filing a protective federal suit became necessary. 458 F. Supp. at 81. We agree with the District Court that the Page 447 U. S. 66 availability of a federal fee award for work done in state proceedings following EEOC referral and deferral should not depend upon whether the complainant ultimately finds it necessary to sue in federal court to obtain relief other than attorney's fees. But our agreement with the District Court compels us to reject its conclusion. It would be anomalous to award fees to the complainant who is unsuccessful or only partially successful in obtaining state or local remedies, but to deny an award to the complainant who is successful in fulfilling Congress' plan that federal policies be vindicated at the state or local level. Since it is clear that Congress intended to authorize fee awards for work done in administrative proceedings, we must conclude that § 706(f)(1)'s authorization of a civil suit in federal court encompasses a suit solely to obtain an award of attorney's fees for legal work done in state and local proceedings. [Footnote 6]IIIAgainst the strong considerations favoring an award of fees, petitioners make three arguments. First, they contend that awarding fees for work done in state proceedings for Page 447 U. S. 67 which the State does not authorize fees [Footnote 7] infringes on the State's powers under the Tenth Amendment. Second, they argue that Congress' intent to preempt the state law has not been clearly expressed. Third, they contend that, even if § 706(k) authorizes fees for work done in state proceedings in some instances, denial of an award here was within the District Court's discretion.We must reject petitioners' Tenth Amendment argument. Congress' power under § 5 of the Fourteenth Amendment is broad, and overrides any interest the State might have in not authorizing awards for fees in connection with state proceedings. See Hutto v. Finney, 437 U. S. 678 (1978); Fitzpatrick v. Bitzer, 427 U. S. 445 (1976).Petitioners cite Florida Lime Avocado Growers, Inc. v. Paul, 373 U. S. 132 (1963), Schwartz v. Texas, 344 U. S. 199 (1952), and Florida v. United States, 282 U. S. 194 (1931), in support of their argument that Congress' intent to preempt state regulation of the administration of state proceedings is not clearly expressed in § 706(k) and should not be inferred. We find these cases inapposite. Section 706(k) does not "preempt" state law. "Title VII was designed to supplement, rather than supplant, existing laws and institutions relating to employment discrimination." Alexander v. Gardner-Denver Co., 415 U.S. at 415 U. S. 449. Title VII explicitly leaves the States free, and indeed encourages them, to exercise their regulatory power over discriminatory employment practices. Title VII merely provides a supplemental right to sue in federal court if satisfactory relief is not obtained in state forums. § 706(f)(1). One aspect of complete relief is an Page 447 U. S. 68 award of attorney's fees, which Congress considered necessary for the fulfillment of federal goals. Provision of a federal award of attorney's fees is not different from any other aspect of the ultimate authority of federal courts to enforce Title VII. For example, if state proceedings result in an injunction in favor of the complainant, but no award for backpay because state law does not authorize it, the complainant may proceed in federal court to "supplement" the state remedy. The state law which fails to authorize backpay has not been preempted. In any event, if it can be said that § 706(k) preempts the state rule, we believe that Congress' intent to achieve this result is manifest.We also find no merit in petitioners' suggestion that denial of a fee award was within the District Court's discretion. As noted earlier, the court's discretion to deny a fee award to a prevailing plaintiff is narrow. Absent "special circumstances," see Newman v. Piggie Park Enterprises, 390 U.S. at 390 U. S. 402; Christiansburg Garment Co. v. EEOC, 434 U.S. at 434 U. S. 416-417, fees should be awarded. Petitioners argue that the availability of a Division attorney to present the "case in support of the complaint" is a "special circumstance" which should deprive a prevailing complainant of a fee award. Clearly, however, an attorney is needed to assist the complainant during the state proceedings, and the Division employee does not take the place of private counsel.The New York state procedure, to which respondent's charge was referred, provides for adversary quasi-judicial hearings leading to findings of fact, administrative appeals, and judicial review. The first stage of the state administrative action is the investigation; this results in either a finding of probable cause or a dismissal of the complaint. N.Y.Exec.Law § 297(2) (McKinney Supp. 1979). A finding of probable cause after investigation is a necessary prelude to the public hearing. § 297(4)(a). State law makes no provision for the participation of a Division attorney in the investigation, and a complainant is not represented by a Division attorney Page 447 U. S. 69 at this preliminary stage. See Brief for New York State Attorney General and New York State Division of Human Rights as Amici Curiae 5.Following the investigation, the Division attempts to conciliate the complainant's grievance with the employer. N.Y.Exec.Law §§ 297(3)(a), (b), and (c) (McKinney 1972). No Division attorney participates in the conciliation efforts on behalf of the complainant, and the Division staff is even empowered to execute a settlement agreement with the employer over the complainant's objections. § 297(3)(c).If efforts at conciliation fail and a hearing is scheduled, state law provides:"The case in support of the complaint shall be presented by one of the attorneys or agents of the division and, at the option of the complainant, by his attorney. With the consent of the division, the case in support of the complainant may be presented solely by his attorney."§ 297(4)(a) (McKinney Supp. 1979). At the time of the hearing on respondent's complaint, however, the practice of the Division was to involve one of its attorneys only if the complainant was not represented by private counsel. Brief for New York State Attorney General and New York State Division of Human Rights as Amici Curiae 5. [Footnote 8] Complainants were "encouraged" to obtain private counsel due to a growing caseload and staff limitations. App. to Pet. for Cert. A58-A59.At the appellate level, the Division attorney appears only to support and seek enforcement of orders issued by the Division and the Appeal Board. N.Y.Exec.Law § 298 (McKinney Supp. 1979). The Division attorney does not Page 447 U. S. 70 represent the complainant on an appeal from an order adverse to the claimant. In addition, the Division cannot appeal from an order of the Human Rights Appeal Board reversing a Division order. See Brief for New York State Attorney General and New York Division of Human Rights as Amici Curiae 6.It is thus obvious that the assistance provided a complainant by the Division attorney is not fully adequate, and that the attorney has no obligation to the complainant as a client. In fact, at times, the position of the Division may be detrimental to the interests of the complainant and to enforcement of federal rights. Representation by a private attorney thus assures development of a complete factual record at the investigative stage and at the administrative hearing. At both, settlement is possible, and is encouraged. A Division employee cannot act as the complainant's attorney for purposes of advising him whether to accept a settlement. Retention of private counsel will help assure that federal rights are not compromised in the conciliation process.If a Division attorney appears at the public hearing, he does not represent the interests of the complainant, but rather those of the State. Id. at 5; App. to Pet. for Cert. A9-A60. He presents the "case in support of the complaint," not in support of the complainant. N.Y.Exec.Law § 297(4)(a) (McKinney Supp. 1979). Upon appeal, the Division attorney is authorized only to support the order entered by the Division or the Appeal Board. Without doubt, the private attorney has an important role to play in preserving and protecting federal rights and interests during the state proceedings. [Footnote 9] Page 447 U. S. 71In sum, we conclude that §§ 706(f) and 706(k) of Title VII authorize a federal court action to recover an award of attorney's fees for work done by the prevailing complainant in state proceedings to which the complainant was referred pursuant to the provisions of Title VII. We also conclude that no special circumstances exist in this case that would justify denial of a fee award.The judgment of the Court of Appeals is therefore affirmed. It is so ordered

U.S. Supreme CourtNew York Gaslight Club, Inc. v. Carey, 447 U.S. 54 (1980)New York Gaslight Club, Inc. v. CareyNo. 79-192Argued February 19, 1980Decided June 9, 1980447 U.S. 54SyllabusSection 706(k) of Title VII of the Civil Rights Act of 1964 provides that in "any action or proceeding under this title" the court may allow attorney's fees to "the prevailing party," other than the Equal Employment Opportunity Commission (EEOC) or the United States. Alleging that petitioners had denied her employment because of her race, respondent filed an employment discrimination charge with the EEOC, which, as required by Title VII, forwarded the complaint to the appropriate New York administrative agency. Respondent was represented by counsel throughout administrative and judicial proceedings in the state system, which proceedings ultimately resulted in affirmance of the state agency's order directing petitioners to offer respondent employment and pay back wages, but not awarding attorney's fees. Meanwhile, the EEOC reassumed jurisdiction and, under § 706(f) of Title VII, issued a right-to-sue letter to respondent, who filed suit in Federal District Court, alleging a claim under Title VII, inter alia, and seeking appropriate relief, including attorney's fees. Petitioners having agreed to comply with the state agency's order, the District Court dismissed the federal action, except for respondent's request for attorney's fees, including fees for her attorney's services in the state proceedings. The court later denied the fee request, ruling that, although the EEOC's issuance of a right-to-sue letter had forced respondent to preserve her rights by filing a complaint in federal court, the mere filing of a federal suit did not entitle an aggrieved party to attorney's fees, and that respondent had the option of pursuing her state administrative remedies without incurring any expenses for legal services, since state law provides that the case in support of the complaint is to be presented to the administrative hearing examiner by one of the state agency's attorneys. The Court of Appeals reversed.Held: Sections 706(f) and 706(k) of Title VII authorize a federal court action to recover an award of attorney's fees for work done by the prevailing complainant in state administrative and judicial proceedings to which the complainant was referred pursuant to the provisions of Title VII, and no special circumstances exist in this case that would justify denial of a fee award. Pp. 447 U. S. 60-71. Page 447 U. S. 55(a) Congress' use of the broadly inclusive disjunctive phrase "any action or proceeding" in § 706(k) indicates an intent to subject the losing party to an award of attorney's fees and costs that includes expenses incurred for administrative proceedings. Other provisions of the statute that interact with § 706(k), the purpose of § 706(k) to facilitate the bringing of discrimination complaints, the humanitarian remedial policies of Title VII, and the statute's structure of cooperation between federal and state enforcement authorities -- calling for deferral to state proceedings, with proceedings before the EEOC and in federal courts being supplements to available state remedies -- all point to the conclusion that fee awards are authorized for work done in state administrative or judicial proceedings as, well as in federal proceedings. Since Congress intended to authorize fee awards for work done in administrative proceedings, § 706(f)(1)'s authorization of a civil suit in federal court encompasses a suit solely to obtain an award of attorney's fees for legal work done in state or local proceedings. Pp. 447 U. S. 666.(b) Awarding fees for work done in state proceedings for which the State does not authorize fees does not infringe on the State's powers under the Tenth Amendment, since Congress' power under § 5 of the Fourteenth Amendment is broad, and overrides any interest the State might have in not authorizing awards for fees. Nor is there any merit in the argument that Congress' intent to preempt the state law has not been clearly expressed. Section 706(k) does not "preempt" state law, since § 706(f)(1) merely provides a supplemental right to sue in federal court if satisfactory relief is not obtained in state forums, and one aspect of complete relief is an award of attorney's fees, which Congress considered necessary for the fulfillment of federal goals. And even if it can be said that § 706(k) preempts the state rule, Congress' intent to achieve this result is manifest. Furthermore, the availability under New York law of an agency attorney to present the case in support of the complaint at the public hearing is not a "special circumstance" depriving a prevailing complainant of a fee award, since a private attorney is needed to assist the complainant during administrative procedures before and after the public hearing stage, and even if an agency attorney appears at the public hearing, he does not represent the complainant's interests, but rather those of the State. Pp. 447 U. S. 66-70.598 F.2d 1253, affirmed.BLACKMUN, J., delivered the opinion of the Court, in which BRENNAN, STEWART, MARSHALL, and POWELL, JJ., joined, and in all but n. 6 of which BURGER, C.J., joined. STEVENS, J., filed an opinion concurring in the judgment, post, p. 447 U. S. 71. WHITE and REHNQUIST, JJ., filed a dissenting statement, post, p. 447 U. S. 71. Page 447 U. S. 56

1971_71-573

MR. JUSTICE REHNQUIST delivered the opinion of the Court.Respondents brought this action in the United States District Court under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680. They sought recovery for property damage allegedly resulting from a sonic boom caused by California-based United States military planes flying over North Carolina on a training mission. The District Court entered summary judgment for petitioners, but, on respondents' appeal, the United States Court of Page 406 U. S. 798 Appeals for the Fourth Circuit reversed. That court held that, although respondents had been unable to show negligence "either in the planning or operation of the flight," they were nonetheless entitled to proceed on a theory of strict or absolute liability for ultrahazardous activities conducted by petitioners in their official capacities. That court relied on its earlier opinion in United States v. Praylou, 208 F.2d 291 (1953), which, in turn, had distinguished this Court's holding in Dalehite v. United States, 346 U. S. 15, 346 U. S. 45 (1953). We granted certiorari. 404 U.S. 1037.Dalehite held that the Government was not liable for the extensive damage resulting from the explosion of two cargo vessels in the harbor of Texas City, Texas, in 1947. The Court's opinion rejected various specifications of negligence on the part of Government employees that had been found by the District Court in that case, and then went on to treat petitioners' claim that the Government was absolutely or strictly liable because of its having engaged in a dangerous activity. The Court said with respect to this aspect of the plaintiffs' claim:"[T]he Act does not extend to such situations, though of course well known in tort law generally. It is to be invoked only on a 'negligent or wrongful act or omission' of an employee. Absolute liability, of course, arises irrespective of how the tortfeasor conducts himself; it is imposed automatically when any damages are sustained as a result of the decision to engage in the dangerous activity."346 U.S. at 346 U. S. 44.This Court's resolution of the strict liability issue in Dalehite did not turn on the question of whether the law of Texas or of some other State did or did not recognize strict liability for the conduct of ultrahazardous activities. It turned instead on the question of whether the language of the Federal Tort Claims Act permitted, Page 406 U. S. 799 under any circumstances, the imposition of liability upon the Government where there had been neither negligence nor wrongful act. The necessary consequence of the Court's holding in Dalehite is that the statutory language "negligent or wrongful act or omission of any employee of the Government," is a uniform federal limitation on the types of acts committed by its employees for which the United States has consented to be sued. Regardless of state law characterization, the Federal Tort Claims Act itself precludes the imposition of liability if there has been no negligence or other form of "misfeasance or nonfeasance," 346 U.S. at 346 U. S. 45, on the part of the Government.It is at least theoretically possible to argue that, since Dalehite, in discussing the legislative history of the Act, said that "wrongful" acts could include some kind of trespass, and since courts imposed liability in some of the early blasting cases on the theory that the plaintiff's action sounded in trespass, liability could be imposed on the Government in this case on a theory of trespass which would be within the Act's waiver of immunity. We believe, however, that there is more than one reason for rejecting such an alternate basis of governmental liability here.The notion that a military plane on a high-altitude training flight itself intrudes upon any property interest of an owner of the land over which it flies was rejected in United States v. Causby, 328 U. S. 256 (1946). There, this Court, construing the Air Commerce Act of 1926, 44 Stat. 568, as amended by the Civil Aeronautics Act of 1938, 52 Stat. 973, 49 U.S.C. § 401, said:"It is ancient doctrine that, at common law, ownership of the land extended to the periphery of the universe -- Cujus est solum ejus est usque and coelum. But that doctrine has no place in the modern world. The air is a public highway, as Congress has declared. Page 406 U. S. 800 Were that not true, every transcontinental flight would subject the operator to countless trespass suits. Common sense revolts at the idea. To recognize such private claims to the airspace would clog these highways, seriously interfere with their control and development in the public interest, and transfer into private ownership that to which only the public has a just claim."328 U.S. at 328 U. S. 260-261.Thus, quite apart from what would very likely be insuperable problems of proof in connecting the passage of the plane over the owner's air space with any ensuing damage from a sonic boom, this version of the trespass theory is ruled out by established federal law. Perhaps the precise holding of United States v. Causby, supra, could be skirted by analogizing the pressure wave of air characterizing a sonic boom to the concussion that, on occasion accompanies blasting, and treating the air wave striking the actual land of the property owner as a direct intrusion caused by the pilot of the plane in the mold of the classical common law theory of trespass.It is quite clear, however, that the presently prevailing view as to the theory of liability for blasting damage is frankly conceded to be strict liability for undertaking an ultrahazardous activity, rather than any attenuated notion of common law trespass. See Restatement of Torts §§ 519, 520(e); W. Prosser, Law of Torts § 75 (4th ed.1971). While a leading North Carolina case on the subject of strict liability discusses the distinction between actions on the case and actions sounding in trespass that the earlier decisions made, it, too, actually grounds liability on the basis that he who engages in ultrahazardous activity must pay his way regardless of what precautions he may have taken. Guilford Realty Ins. Co. v. Blythe Bros. Co., 260 N.C. 69, 131 S.E.2d 900 (1963).More importantly, however, Congress, in considering the Federal Tort Claims Act, cannot realistically be said Page 406 U. S. 801 to have dealt in terms of either the jurisprudential distinctions peculiar to the forms of action at common law or the metaphysical subtleties that crop up in even contemporary discussions of tort theory. See Prosser, supra at 492-496. The legislative history discussed in Dalehite indicates that Congress intended to permit liability essentially based on the intentionally wrongful or careless conduct of Government employees, for which the Government was to be made liable according to state law under the doctrine of respondeat superior, but to exclude liability based solely on the ultrahazardous nature of an activity undertaken by the Government.A House Judiciary Committee memorandum explaining the "discretionary function" exemption from the bill when that exemption first appeared in the draft legislation in 1942 made the comment that "the cases covered by that subsection would probably have been exempted . . . by judicial construction" in any event, but that the exemption was intended to preclude any possibility"that the act would be construed to authorize suit for damages against the Government growing out of a legally authorized activity, such as a flood control or irrigation project, where no wrongful act or omission on the part of any Government agent is shown, and the only ground for suit is the contention that the same conduct by a private individual would be tortious. . . ."Hearings on H.R. 5373 and H.R. 6463 before the House Committee on the Judiciary, 77th Cong., 2d Sess., ser. 13, pp. 65-66 (1942).The same memorandum, after noting the erosion of the doctrine of sovereign immunity over the years, observed with respect to the bill generally:"Yet a large and highly important area remains in which no satisfactory remedy has been provided Page 406 U. S. 802 for the wrongs of Government officers or employees, the ordinary 'common law' type of tort, such as personal injury or property damage caused by the negligent operation of an automobile."Id. at 39.The type of trespass subsumed under the Act's language making the Government liable for "wrongful" acts of its employees is exemplified by the conduct of the Government agents in Hatahley v. United States, 351 U. S. 173, 351 U. S. 181. Liability of this type under the Act is not to be broadened beyond the intent of Congress by dressing up the substance of strict liability for ultrahazardous activities in the garments of common law trespass. To permit respondent to proceed on a trespass theory here would be to judicially admit at the back door that which has been legislatively turned away at the front door. We do not believe the Act permits such a result.Shortly after the decision of this Court in Dalehite, the facts of the Texas City catastrophe were presented to Congress in an effort to obtain legislative relief from that body. Congress, after conducting hearings and receiving reports, ultimately enacted a bill granting compensation to the victims in question. 69 Stat. 707; H.R.Rep. No. 2024, 83d Cong., 2d Sess. (1954); S.Rep. No. 2363, 83d Cong., 2d Sess. (1954); H.R.Rep. No. 1305, 84th Cong., 1st Sess. (1955); H.R.Rep. No. 1623, 84th Cong., 1st Sess. (1955); S.Rep. No. 684, 84th Cong., 1st Sess. (1955). At no time during these hearings was there any effort made to modify this Court's construction of the Tort Claims Act in Dalehite. Both by reason of stare decisis and by reason of Congress' failure to make any statutory change upon again reviewing the subject, we regard the principle enunciated in Dalehite as controlling here.Since Dalehite held that the Federal Tort Claims Act did not authorize suit against the Government on claims Page 406 U. S. 803 based on strict liability for ultrahazardous activity, the Court of Appeals in the instant case erred in reaching a contrary conclusion. While, as a matter of practice within the Circuit, it may have been proper to rely upon United States v. Praylou, 208 F.2d 291, it is clear that the holding of the latter case permitting imposition of strict liability on the Government where state law permits it is likewise inconsistent with Dalehite. Dalehite did not depend on the factual question of whether the Government was handling dangerous property, as opposed to operating a dangerous instrument but, rather, on the Court's determination that the Act did not authorize the imposition of strict liability of any sort upon the Government. Indeed, even the dissenting opinion in Dalehite did not disagree with the conclusion of the majority on that point.Our reaffirmation of the construction put on the Federal Tort Claims Act in Dalehite makes it unnecessary to treat the scope of the discretionary function exemption contained in the Act, or the other matters dealt with by the Court of Appeals.Reversed

U.S. Supreme CourtLaird v. Nelms, 406 U.S. 797 (1972)Laird v. NelmsNo. 71-573Argued April 17, 1972Decided June 7, 1972406 U.S. 797SyllabusDamage from sonic boom caused by military planes, where no negligence was shown either in the planning or operation of the flight, is not actionable under the Federal Tort Claims Act, which does not authorize suit against the Government on claims based on strict or absolute liability for ultrahazardous activity. Dalehite v. United States, 346 U. S. 15. Pp. 406 U. S. 798-803.442 F.2d 1163, reversed.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, MARSHALL, BLACKMUN, and POWELL, JJ., joined. STEWART, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 406 U. S. 803. DOUGLAS, J., took no part in the consideration or decision of the case.

1989_89-624

Justice BRENNAN delivered the opinion of the Court.Under the Interstate Commerce Act (Act), 49 U.S.C. § 10101 et seq. (1982 ed.), motor common carriers must file their rates with the Interstate Commerce Commission (ICC or Commission), and both carriers and shippers must adhere to these rates. This case requires us to determine the validity of a policy recently adopted by the ICC that relieves a shipper of the obligation of paying the filed rate when the shipper and carrier have privately negotiated a lower rate. We hold that this policy is inconsistent with the Act.IAThe ICC regulates interstate transportation by motor common carriers to ensure that rates are both reasonable and nondiscriminatory. See 49 U.S.C. §§ 10101(a), 10701(a), 10741(b) (1982 ed.). The Act provides that a "common carrier . . . may not subject a person, place, port, or type of traffic to unreasonable discrimination." § 10741. In addition, the Act states that "[a] rate . . . , classification, rule, or practice related to transportation or service . . . must be reasonable." § 10701(a). [Footnote 1] The ICC has primary responsibility for determining whether a rate or practice is reasonable. See Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 204 U. S. 440-442 (1907). The Commission may investigate the reasonableness of a rate "on its own initiative or on complaint." § 11701(a). When the Commission determines that a rate or practice violates the statute, it "shall prescribe the rate . . . or practice to be followed." § 10704(b)(1). Moreover, motor common carriers are liable "for damages resulting from the imposition of rates for transportation or service Page 497 U. S. 120 the Commission finds to be in violation" of the Act. 49 U.S.C. § 11705(b)(3) (1982 ed., Supp. V).The Act requires a motor common carrier to "publish and file with the Commission tariffs containing the rates for transportation it may provide." 49 U.S.C. § 10762(a)(1) (1982 ed.). The Act also specifically prohibits a carrier from providing services at any rate other than the filed (also known as tariff) rate:"Except as provided in this subtitle, a carrier providing transportation or service subject to the jurisdiction of the Interstate Commerce Commission . . . shall provide that transportation or service only if the rate for the transportation or service is contained in a tariff that is in effect under this subchapter. That carrier may not charge or receive a different compensation for that transportation or service than the rate specified in the tariff whether by returning a part of that rate to a person, giving a person a privilege, allowing the use of a facility that affects the value of that transportation or service, or another device."§ 10761(a). Deviation from the filed rate may result in the imposition of civil or criminal sanctions on the carrier or shipper. See §§ 11902-11904. [Footnote 2]As the Court has frequently stated, the statute does not permit either a shipper's ignorance or the carrier's misquotation of the applicable rate to serve as a defense to the collection of the filed rate. See Southern Pacific Transp. Co. v. Page 497 U. S. 121 Commercial Metals Co., 456 U. S. 336, 456 U. S. 352 (1982); Louisville & Nashville R. Co. v. Maxwell, 237 U. S. 94, 237 U. S. 97 (1915). In 1986, however, the ICC concluded that changes in the motor carrier industry "clearly warrant a tempering of the former harsh rule of adhering to the tariff rate in virtually all cases." NITL -- Petition to Institute Rulemaking on Negotiated Motor Common Carrier Rates, 3 I.C.C.2d 99, 106 (1986) (Negotiated Rates I). Under the new policy, when cases are referred to the Commission, it "decid[es] if the collection of undercharges would be an unreasonable practice." Id. at 100.In Negotiated Rates I, the Commission adverted to a growing trend in the motor carrier industry whereby carriers and shippers negotiate rates lower than those on file with the ICC and the shippers are billed for and remit payment at the negotiated rate. In many instances, however, the negotiated rate is never filed with the ICC. In some of those cases, the carrier subsequently files for bankruptcy and the trustee bills the shipper for the difference between the tariff rate and the negotiated rate, arguing that § 10761 compels the collection of the filed, rather than negotiated, rate. Id. at 99. The Commission concluded that, under such circumstances, "it could be fundamentally unfair not to consider a shipper's equitable defenses to a claim for undercharges." Id. at 103. The Commission reasoned that the passage of the Motor Carrier Act of 1980, which significantly deregulated the motor carrier industry, justified the change in policy, for the new competitive atmosphere made strict application of § 10761 unnecessary to deter discrimination. 3 I.C.C.2d at 106. Moreover, the Commission asserted that it had authority under § 10701 to determine whether the collection of the undercharge in a particular case would constitute an unreasonable practice. Id. at 103. [Footnote 3] Page 497 U. S. 122The ICC clarified its new policy in NITL -- Petition to Institute Rulemaking on Negotiated Motor Common Carrier Rates, 5 I.C.C.2d 623 (1989) (Negotiated Rates II). The Commission explained that its policy did not recognize "equitable defenses," but rather applied the "affirmative statutory requiremen[t] and obligatio[n]" of § 10701 that a carrier's practices be reasonable. Id. at 631, n. 18. [Footnote 4]"[T]he Commission is finding to be an unreasonable practice . . . a course of conduct consisting of: (1) negotiating a rate; (2) agreeing to a rate that the shipper reasonably relies upon as being lawfully filed; (3) failing, either willfully or otherwise, to publish the rate; (4) billing and accepting payment at the negotiated rate for (sometimes) numerous shipments; and (5) then demanding additional payment at higher rates."Id. at 628, n. 11.BThis case involves the application of the Commission's new Negotiated Rates policy. It arises from an action by petitioner Maislin Industries, Inc. (Maislin), to recover freight undercharges for 1,081 interstate shipments performed Page 497 U. S. 123 for a shipper, respondent Primary Steel (Primary), by petitioner's subsidiary, Quinn Freight Lines (Quinn). From 1981 to 1983, Quinn, a motor common carrier certificated by the ICC, privately negotiated rates with Primary that were lower than Quinn's rates then on file with the ICC. Quinn never filed the negotiated rates with the ICC.In 1983, Maislin filed for bankruptcy, and a post-petition audit of its accounts revealed undercharges of $187,923.36 resulting from billing Primary at the negotiated, rather than filed, rates. The agents of the bankrupt estate, pursuant to the authorization of the bankruptcy court, issued balance due bills to Primary for these undercharges. When Primary refused to pay the amounts demanded, the estate brought suit in the United States District Court for the Western District of Missouri under 49 U.S.C. § 11706(a) (1982 ed.) [Footnote 5] for the difference between the filed rates and the negotiated rates.In its answer, Primary alleged that, since the parties had negotiated lower rates, rebilling at the tariff rates would constitute an unreasonable practice in violation of § 10701; that the tariff rates themselves were not "reasonable" within the meaning of § 10701; and that the asserted tariff rates were otherwise inapplicable to the shipments at issue. The District Court, finding these matters to be within the primary jurisdiction of the ICC, stayed the proceeding at Primary's request and referred the case to the Commission. App. 6-8.The ICC ruled in Primary's favor, rejecting Maislin's argument that the Commission lacked the statutory power to release a shipper from liability for such undercharges. Relying on Negotiated Rates I, the ICC reiterated that § 10701 authorized it to "consider all the circumstances surrounding an Page 497 U. S. 124 undercharge suit" to determine whether collection of the filed rate would constitute an unreasonable practice. App. to Pet. for Cert. 35a. In the Commission's view, its role was"to undertake an analysis of whether a negotiated but unpublished rate existed, the circumstances surrounding assessment of the tariff rate, and any other pertinent facts."Id. at 36a. With respect to the instant controversy, the ICC concluded that Quinn and Primary had negotiated rates other than the tariff rates [Footnote 6] and that Primary had relied on Quinn to file the rates with the ICC. [Footnote 7]"Primary reasonably believed that the amounts quoted and billed by Quinn were the correct total charges for the transportation services it performed, that the amounts were reached as the result of negotiations between Primary and Quinn, and that, since full payment Page 497 U. S. 125 was made by [Primary],"Maislin was not entitled to recover the filed rates. Id. at 43a.The case returned to the District Court, where both parties moved for summary judgment. The court granted summary judgment for Primary, rejecting Maislin's argument that the ICC's new policy was, in effect, an impermissible recognition of equitable defenses to the application of the filed rate. The District Court concluded that the ICC's policy of determining case by case whether the collection of undercharges would be an unreasonable practice under § 10701 was based on a permissible construction of the Act. 705 F. Supp. 1401, 1405-1406 (1988). The court also determined that the ICC's finding that Maislin had engaged in an unreasonable practice was supported by substantial evidence. Id. at 1406-1407.The Court of Appeals for the Eighth Circuit affirmed, agreeing that the approach taken by the ICC was consistent with the Act. The court reasoned that"[s]ection 10761(a), which mandates the collection of tariff rates, is only part of an overall regulatory scheme administered by the ICC, and there is no provision in the [Act] elevating this section over section 10701, which requires that tariff rates be reasonable."879 F.2d 400, 405 (1989). The court concluded:"[T]he proper authority to harmonize these competing provisions is the ICC. . . . The approach taken by the ICC does not abolish the filed rate doctrine, but merely allows the ICC to consider all of the circumstances, including equitable defenses, to determine if strict adherence to the filed rate doctrine would constitute an unreasonable practice."Ibid. (citation omitted). Because the Courts of Appeals have disagreed on the important issue of whether the ICC's Negotiated Rates policy is consistent with the Act, [Footnote 8] we granted certiorari. 493 U.S. 1041 (1990). Page 497 U. S. 126IIThe Interstate Commerce Act requires a motor common carrier to publish its rates in a tariff filed with the Commission. 49 U.S.C. § 10762 (1982 ed.). This Court has long understood that the filed rate governs the legal relationship between shipper and carrier. In Keogh v. Chicago & Northwestern R. Co., 260 U. S. 156, 260 U. S. 163 (1922), the Court explained:"The legal rights of shipper as against carrier in respect to a rate are measured by the published tariff. Unless and until suspended or set aside, this rate is made, for all purposes, the legal rate, as between carrier and shipper. The rights as defined by the tariff cannot be varied or enlarged by either contract or tort of the carrier. . . . This stringent rule prevails because, otherwise, the paramount purpose of Congress -- prevention of unjust discrimination -- might be defeated."(Citations omitted.) See Square D Co. v. Niagara Frontier Tariff Bureau, Inc., 476 U. S. 409, 476 U. S. 415-417 (1986); Abilene Cotton Oil, 204 U.S. at 204 U. S. 439; Texas & Pacific R. Co. v. Mugg, 202 U. S. 242, 202 U. S. 245 (1906); Gulf, C. & S.F.R. Co. v. Hefley, 158 U. S. 98, 158 U. S. 101 (1895). The duty to file rates with the Commission, see § 10762, and the obligation to charge only those rates, see § 10761, have always been considered essential to preventing price discrimination and stabilizing rates."In order to render rates definite and certain, and to prevent discrimination and other abuses, the statute require[s] the filing and publishing of tariffs specifying the rates adopted by the carrier, and ma[kes] these the legal rates, that is, those which must be charged to all shippers alike."Arizona Grocery Co. v. Atchison, T. & S.F.R. Co., 284 U. S. 370, 284 U. S. 384 (1932).Given the close interplay between the duties imposed by §§ 10761-10762 and the statutory prohibition on discrimination, Page 497 U. S. 127 see § 10741, this Court has read the statute to create strict filed rate requirements and to forbid equitable defenses to collection of the filed tariff. See Mugg, supra, 202 U.S. at 202 U. S. 245; Hefley, supra, 158 U.S. at 158 U. S. 101. The classic statement of the "filed rate doctrine," as it has come to be known, is explained in Louisville & Nashville R. Co. v. Maxwell, 237 U. S. 94 (1915). In that case, the Court held that a passenger who purchased a train ticket at a rate misquoted by the ticket agent did not have a defense against the subsequent collection of the higher tariff rate by the railroad."Under the Interstate Commerce Act, the rate of the carrier duly filed is the only lawful charge. Deviation from it is not permitted upon any pretext. Shippers and travelers are charged with notice of it, and they as well as the carrier must abide by it unless it is found by the Commission to be unreasonable. Ignorance or misquotation of rates is not an excuse for paying or charging either less or more than the rate filed. This rule is undeniably strict, and it obviously may work hardship in some cases, but it embodies the policy which has been adopted by Congress in the regulation of interstate commerce in order to prevent unjust discrimination."Id. at 237 U. S. 97. [Footnote 9] This rigid approach was deemed necessary to prevent carriers from intentionally "misquoting" rates to shippers as a means of offering them rebates or discounts. See S.Rep. Page 497 U. S. 128 No. 46, 49th Cong., 1st Sess., 181, 188-190, 198-200 (1886). As the Commission itself found,"past experience shows that billing clerks and other agents of carriers might easily become experts in the making of errors and mistakes in the quotation of rates to favored shippers, while other shippers, less fortunate in their relations with carriers and whose traffic is less important, would be compelled to pay the higher published rates."Poor v. Chicago, B. & Q.R. Co., 12 I.C.C. 418, 421 Grain Co. (1907); see also Western Transp. Co. v. Wilson & Co., 682 F.2d 1227, 1230-1231 (CA7 1982). Despite the harsh effects of the filed rate doctrine, we have consistently adhered to it. See, e.g., Thurston Motor Lines, Inc. v. Jordan K. Rand, Ltd., 460 U. S. 533, 460 U. S. 535 (1983); Southern Pacific Transp. Co., 456 U.S. at 456 U. S. 343-344; Baldwin v. Scott County Milling Co., 307 U. S. 478, 307 U. S. 484-485 (1939); Louisville & Nashville R. Co. v. Central Iron & Coal Co., 265 U. S. 59, 265 U. S. 65 (1924).The filed rate doctrine, however, contains an important caveat: the filed rate is not enforceable if the ICC finds the rate to be unreasonable. See Maxwell, supra, 237 U.S. at 237 U. S. 97 (filed rate applies "unless it is found by the Commission to be unreasonable") (emphasis added); see also Keogh, 260 U.S. at 260 U. S. 163 ("The legal rights of shipper as against carrier in respect to a rate are measured by the published tariff. Unless and until suspended or set aside, this rate is made, for all purposes, the legal rate") (emphasis added). The filed rate doctrine, therefore, follows from the requirement that only filed rates be collected, as commanded by §§ 10761 and 10762, the requirement that rates not be discriminatory, see 49 U.S.C. § 10741, and the requirement of § 10701 that carriers adopt reasonable rates and practices. As we explained in Arizona Grocery, supra, although the filed rate is the legal rate, the Act"did not abrogate, but [rather] expressly affirmed, the common-law duty to charge no more than a reasonable rate. . . . In other words, the legal rate was not made by the statute a lawful rate -- it was lawful only if it was Page 497 U. S. 129 reasonable. Under [the Act,] the shipper was bound to pay the legal rate; but if he could show that it was unreasonable, he might recover reparation.""The Act altered the common law by lodging in the Commission the power, theretofore exercised by courts, of determining the reasonableness of a published rate. If the finding on this question was against the carrier, reparation was to be awarded the shipper, and only the enforcement of the award was relegated to the courts."284 U.S. at 284 U. S. 384-385 (footnote omitted).In the instant case, the Commission did not find that the rates were unreasonable, [Footnote 10] but rather concluded that the carrier had engaged in an unreasonable practice in violation of § 10701 that should preclude it from collecting the filed rates. The Commission argues that, under the filed rate doctrine, a finding that the carrier engaged in an unreasonable practice should, like a finding that the filed rate is unreasonable, disentitle the carrier to collection of the filed rate. We have never held that a carrier's unreasonable practice justifies departure from the filed tariff schedule. [Footnote 11] But we need not Page 497 U. S. 130 resolve this issue today, because we conclude that the justification for departure from the filed tariff schedule that the ICC set forth in its Negotiated Rates policy rests on an interpretation of the Act that is contrary to the language and structure of the statute as a whole and the requirements that make up the filed rate doctrine in particular.Under the Negotiated Rates policy, the ICC has determined that a carrier engages in an unreasonable practice when it attempts to collect the filed rate after the parties have negotiated a lower rate. The ICC argues that its conclusion is entitled to deference because § 10701 does not specifically address the types of practices that are to be considered unreasonable and because its construction is rational and consistent with the statute. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 467 U. S. 843 (1984).We disagree. For a century, this Court has held that the Act, as it incorporates the filed rate doctrine, forbids as discriminatory the secret negotiation and collection of rates lower than the filed rate. See supra at 497 U. S. 126-128. By refusing to order collection of the filed rate solely because the parties had agreed to a lower rate, the ICC has permitted the very price discrimination the Act by its terms seeks to prevent. See 49 U.S.C. § 10741. As we stated in Armour Packing Co. v. United States, 209 U. S. 56, 209 U. S. 81 (1908):"If the rates are subject to secret alteration by special agreement, then the statute will fail of its purpose to establish a rate duly published, known to all, and from which neither shipper nor carrier may depart. . . . [The Act] has provided for the establishing of one rate, to be filed as provided, subject to change as provided, and that rate to be while in force the only legal rate. Any other Page 497 U. S. 131 construction of the statute opens the door to the possibility of the very abuses of unequal rates which it was the design of the statute to prohibit and punish."Congress has not diverged from this interpretation, and we decline to revisit it ourselves. See California v. FERC, 495 U. S. 490, 495 U. S. 499 (1990), (recognizing the respect "this Court must accord to long-standing and well-entrenched decisions, especially those interpreting statutes that underlie complex regulatory regimes"). Once we have determined a statute's clear meaning, we adhere to that determination under the doctrine of stare decisis, and we judge an agency's later interpretation of the statute against our prior determination of the statute's meaning. Labeling the carrier's conduct an "unreasonable practice" cannot disguise the fact that the ICC is justifying deviation from the filed rate purely on the ground that the carrier and shipper have privately negotiated a lower rate. Stripped of its semantic cover, the Negotiated Rates policy and, more specifically, the Commission's interpretation of "unreasonable practices" thus stand revealed as flatly inconsistent with the statutory scheme as a whole, cf. Fort Stewart Schools v. FLRA, 495 U. S. 641, 645 (1990); Dole v. United Steelworkers, 494 U. S. 26, 494 U. S. 32 (1990), and §§ 10761 and 10762 in particular.Nor can the Negotiated Rates policy be justified as a remedy for the carrier's failure to comply with § 10762's directive to file the negotiated rate with the ICC. See Negotiated Rates I, 3 I.C.C.2d at 103. The Commission argues that the carrier should not receive a windfall, i.e., the higher filed rate, from its failure to comply with the statute. See Brief for United States 25-27. But § 10761 requires the carrier to collect the filed rate, and we have never accepted the argument that such "equities" are relevant to the application of § 10761. [Footnote 12] See, e.g., Maxwell, 237 U.S. at 237 U. S. 97. Indeed, Page 497 U. S. 132 strict adherence to the filed rate has never been justified on the ground that the carrier is equitably entitled to that rate, but rather that such adherence, despite its harsh consequences in some cases, is necessary to enforcement of the Act. See supra, at 497 U. S. 126-128.Compliance with §§ 10761 and 10762 is "utterly central" to the administration of the Act. Regular Common Carrier Conference v. United States, 263 U.S.App.D.C. 305, 308, 793 F.2d 376, 379 (1986)."Without [these provisions,] . . . it would be monumentally difficult to enforce the requirement that rates be reasonable and nondiscriminatory, . . . and virtually impossible for the public to assert its right to challenge the lawfulness of existing proposed rates."Ibid. (citations omitted). Although the ICC argues that the Negotiated Rates policy does not "abolis[h] the requirement in section 10761 that carriers must continue to charge the tariff rate," App. to Pet. for Cert. 36a, the policy, by sanctioning adherence to unfiled rates, undermines the basic structure of the Act. The ICC cannot review in advance the reasonableness of unfiled rates. Likewise, other shippers cannot know if they should challenge a carrier's rates as discriminatory when many of the carrier's rates are privately negotiated and Page 497 U. S. 133 never disclosed to the ICC. Thus, although we agree that the Commission may have discretion to craft appropriate remedies for violations of the statute, see ICC v. American Trucking Assns., Inc., 467 U. S. 354, 467 U. S. 364-365 (1984), the "remedy" articulated in the Negotiated Rates policy effectively renders nugatory the requirements of §§ 10761 and 10762, and conflicts directly with the core purposes of the Act.The ICC maintains, however, that the passage of the Motor Carrier Act of 1980 (MCA), Pub.L. 96-296, 94 Stat. 793, justifies its Negotiated Rates policy. The MCA substantially deregulated the motor carrier industry in many ways in an effort to "promote competitive and efficient transportation services." Pub.L. 96-296, § 4, formerly codified at 49 U.S.C. § 10101(a)(7) (1976 ed., Supp. V). In addition to loosening entry controls, see § 5, codified at 49 U.S.C. § 10922 (1982 ed.), the MCA also created a zone of reasonableness within which carriers can raise rates without interference from the ICC. See § 11, codified at 49 U.S.C. § 10708 (1982 ed.). More importantly, the MCA also allows motor carriers to operate as both common carriers and contract carriers. See Pub.L. 96296, § 10(b)(1), amending 49 U.S.C. § 10930(a) (1982 ed.). A contract carrier transports property under exclusive agreements with a shipper, see 49 U.S.C. § 10102(14) (1982 ed.), and the Commission has exempted all motor contract carriers from the requirements of §§ 10761 and 10762. See Exemption of Motor Contract Carriers from Tariff Filing Requirements, 133 M.C.C. 150 (1983), aff'd sub nom. Central & Southern. Motor Freight Tariff Assn., Inc. v. United States, 244 U.S.App.D.C. 226, 757 F.2d 301, cert. denied, 474 U.S. 1019, (1985). [Footnote 13] The Commission has also relaxed the Page 497 U. S. 134 regulations relating to motor common carriers, most significantly by allowing decreased rates to go into effect one day after the filing of a tariff. See Short Notice Effectiveness for Independently Filed Rates, 1 I.C.C.2d 146 (1984), aff'd sub nom. Southern Motor Carriers Rate Conference v. United States, 773 F.2d 1561 (CA11 1985). [Footnote 14] In Negotiated Rates I and II, the Commission concluded that, in light of the more competitive environment, strict adherence to the filed rate doctrine "is inappropriate and unnecessary to deter discrimination today." Negotiated Rates I, 3 I.C.C., at 106. According to the Commission,"'the inability of a shipper to rely on a carrier's interpretation of a tariff is a greater evil than the remote possibility that a carrier might intentionally misquote an applicable tariff rate to discriminate illegally between shippers.'"Ibid., quoting Seaboard System R. Co. v. United States, 794 F.2d 635, 638 (CA11 1986).We reject this argument. Although the Commission has both the authority and expertise generally to adopt new policies when faced with new developments in the industry, see American Trucking Assns., Inc. v. Atchison, T. & S.F.R. Co., 387 U. S. 397 (1967), it does not have the power Page 497 U. S. 135 to adopt a policy that directly conflicts with its governing statute. Nothing in the MCA repeals §§ 10761 and 10762 or casts doubt on our prior interpretation of those sections. Generalized congressional exhortations to "increase competition" cannot provide the ICC authority to alter the well-established statutory filed rate requirements. As we said in Square D Co. v. Niagara Frontier Traffic Bureau, Inc., with respect to a similarly longstanding judicial interpretation of the Act:"Congress must be presumed to have been fully cognizant of this interpretation of the statutory scheme, which had been a significant part of our settled law for over half a century, and . . . Congress did not see fit to change it when Congress carefully reexamined this area of the law in 1980. [Respondent has] pointed to no specific statutory provision or legislative history indicating a specific congressional intention to overturn the longstanding . . . construction; harmony with the general legislative purpose is inadequate for that formidable task."476 U.S. at 476 U. S. 420 (footnotes omitted). See also California v. FERC, 495 U.S. at 495 U. S. 498, 495 U. S. 499-450. Even before the passage of the MCA, Congress had allowed the Commission to exempt motor contract carriers from the requirement that they adhere to the published tariff, see 49 U.S.C. § 10761(b) (1982 ed.), demonstrating that Congress is aware of the requirement and has deliberately chosen not to disturb it with respect to motor common carriers. [Footnote 15] If Page 497 U. S. 136 strict adherence to §§ 10761 and 10762 as embodied in the filed rate doctrine has become an anachronism in the wake of the MCA, it is the responsibility of Congress to modify or eliminate these sections.Accordingly, the judgment of the Court of Appeals is reversed and the cause remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtMaislin Indus. v. Primary Steel, 497 U.S. 116 (1990)Maislin Industries, Inc. v. Primary Steel, Inc.No. 89-624Argued April 16, 1990Decided June 21, 1990497 U.S. 116SyllabusThe Interstate Commerce Act (Act) requires motor common carriers to publish their rates in tariffs filed with the Interstate Commerce Commission (ICC), 49 U.S.C. § 10762, and prohibits both carriers and shippers from deviating from those rates, § 10761. The Act also specifies that a carrier's rates must be nondiscriminatory, § 10741, and that its rates and practices must be reasonable, § 10701, and charges the ICC, upon determining that a rate or practice violates the statute, with prescribing the rate or practice to be followed, § 10704(b)(1). Purportedly pursuant to this authority, the ICC, in its recent Negotiated Rates decisions, has adopted a policy that relieves a shipper of the obligation to pay the filed rate when it has privately negotiated a lower rate with the carrier. From 1981 to 1983, Quinn Freight Lines, a motor common carrier and a subsidiary of petitioner Maislin Industries, Inc., privately negotiated interstate shipment rates with respondent Primary Steel, Inc., that were lower than Quinn's filed rates. Quinn never filed the negotiated rates with the ICC. In 1983, Maislin filed for bankruptcy, and the bankrupt estate issued balance due bills to Primary for the difference between the filed rates and the negotiated rates. When Primary refused to pay the undercharges, the estate brought suit in the District Court, which referred the matter to the ICC. Rejecting the argument that it lacked the statutory power to release a shipper from liability for such undercharges, the ICC relied on its Negotiated Rates policy to hold that § 10701 authorized it to consider all the circumstances surrounding an undercharge suit to determine whether collection of the filed rate would constitute an unreasonable practice. The ICC concluded that Maislin was not entitled to recover, since Quinn and Primary had negotiated other rates, and since Primary had relied on Quinn to file those rates, had reasonably believed that the amounts quoted and billed were the correct total charges, and had made full payment. The case returned to the District Court, which granted summary judgment for Primary on the basis of the ICC's decision. The Court of Appeals affirmed, agreeing with the District Court that the approach taken by the ICC was consistent with the Act. Page 497 U. S. 117Held: The ICC's Negotiated Rates policy is inconsistent with the Act, and is therefore invalid. Pp. 497 U. S. 126-136.(a) Since the duty to file rates under § 10762 and the obligation to charge only those rates under § 10761 have always been considered essential to preventing price discrimination violative of § 10741, Arizona Grocery Co. v. Atchison, T. & S. F. R. Co., 284 U. S. 370, 284 U. S. 384, this Court has long held that the filed rate alone governs the legal rights of a shipper against a carrier, see, e.g., Keogh v. Chicago & Northwestern R. Co., 260 U. S. 156, 260 U. S. 163, and that the statute forbids equitable defenses to collection of the filed tariff, see, e.g., Texas & Pacific R. Co. v. Mugg, 202 U. S. 242, 202 U. S. 245, including the shipper's ignorance or the carrier's misquotation of rates, see, e.g., Louisville & Nashville R. Co. v. Maxwell, 237 U. S. 94, 237 U. S. 97. Despite its sometimes harsh effects, this rigid "filed rate doctrine" has been strictly applied and consistently adhered to by the Court. See, e.g., Thurston Motor Lines, Inc. v. Jordan K. Rand, Ltd., 460 U. S. 533, 460 U. S. 535. Pp. 497 U. S. 126-128.(b) Although, under the filed rate doctrine, the tariff rate is not enforceable if the ICC finds it to be unreasonable, see, e.g., Maxwell, supra, 237 U.S. at 237 U. S. 97, that exception is not applicable here. The ICC's determination that a carrier engages in an "unreasonable practice" when it attempts to collect the filed rate after the parties have negotiated a lower rate is not entitled to deference, since it conflicts with this Court's interpretation, from which Congress has not diverged, that the secret negotiation and collection of rates lower than the filed rate is discriminatory under § 10741. See, e.g., Armour Packing Co. v. United States, 209 U. S. 56, 209 U. S. 81. Stripped of its semantic cover, the Negotiated Rates policy and, more specifically, the ICC's interpretation of "unreasonable practices," thus stand revealed as flatly inconsistent with the Act's scheme as a whole and §§ 10761 and 10762 in particular. Nor can the ICC's policy be justified on the ground that it prevents the carrier from receiving a windfall, i.e., the higher filed rate, from its failure to comply with § 10762's directive to file the negotiated rate, since such "equities" are irrelevant to the application of § 10761, which requires the carrier to collect the filed rate. Compliance with §§ 10761 and 10762 is utterly central to the administration of the Act, and, by sanctioning adherence to unfiled rates, the Negotiated Rates policy effectively renders those sections nugatory and conflicts directly with the Act's core purposes. Pp. 497 U. S. 128-133.(c) The passage of the Motor Carrier Act of 1980 (MCA) --which substantially deregulated the motor carrier industry for the avowed purpose of promoting competitive and efficient transportation services -- does not justify the ICC's Negotiated Rates policy. Although the ICC has both the authority and the expertise generally to adopt new policies when Page 497 U. S. 118 faced with new developments in the industry, its power does not extend to a policy that directly conflicts with its governing statute. Nothing in the MCA repeals §§ 10761 and 10762, and generalized congressional exhortations to "increase competition" cannot provide the ICC authority to alter the requirements of those sections as interpreted by this Court. Cf. Square D Co. v. Niagara Frontier Traffic Bureau, Inc., 476 U. S. 409, 476 U. S. 420. The fact that, even before the MCA's passage, Congress had allowed the ICC to exempt motor contract carriers from the requirement that they adhere to the published tariff, see § 10761(b), demonstrates that Congress is aware of the requirement, and has deliberately chosen not to disturb it with respect to motor common carriers. Pp. 497 U. S. 133-136.879 F.2d 400 (CA8 1989), reversed and remanded.BRENNAN, J., delivered the opinion of the Court, in which WHITE, MARSHALL, BLACKMUN, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. SCALIA, J., filed a concurring opinion, post, p. 497 U. S. 138. STEVENS, J., filed a dissenting opinion, in which REHNQUIST, C.J., joined. post, p. 497 U. S. 138. Page 497 U. S. 119

1966_649

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.We granted certiorari in this case to determine whether the right of a defendant in a criminal case under the Page 388 U. S. 15 Sixth Amendment [Footnote 1] to have compulsory process for obtaining witnesses in his favor is applicable to the States through the Fourteenth Amendment, [Footnote 2] and whether that right was violated by a state procedural statute providing that persons charged as principals, accomplices, or accessories in the same crime cannot be introduced as witnesses for each other.Petitioner, Jackie Washington, was convicted in Dallas County, Texas, of murder with malice, and was sentenced by a jury to 50 years in prison. The prosecution's evidence showed that petitioner, an 18-year-old youth, had dated a girl named Jean Carter until her mother had forbidden her to see him. The girl thereafter began dating another boy, the deceased. Evidently motivated by jealousy, petitioner with several other boys began driving around the City of Dallas on the night of August 29, 1964, looking for a gun. The search eventually led to one Charles Fuller, who joined the group with his shotgun. After obtaining some shells from another source, the group of boys proceeded to Jean Carter's home, where Jean, her family and the deceased were having supper. Some of the boys threw bricks at the house and then ran back to the car, leaving petitioner and Fuller alone in front of the house with the shotgun. At the sound of the bricks, the deceased and Jean Carter's mother rushed out on the porch to investigate. The shotgun was fired by either petitioner or Fuller, and the Page 388 U. S. 16 deceased was fatally wounded. Shortly afterward, petitioner and Fuller came running back to the car, where the other boys waited, with Fuller carrying the shotgun.Petitioner testified in his own behalf. He claimed that Fuller, who was intoxicated, had taken the gun from him, and that he had unsuccessfully tried to persuade Fuller to leave before the shooting. Fuller had insisted that he was going to shoot someone, and petitioner had run back to the automobile. He saw the girl's mother come out of the door as he began running, and he subsequently heard the shot. At the time, he had thought that Fuller had shot the woman. In support of his version of the facts, petitioner offered the testimony of Fuller. The record indicates that Fuller would have testified that petitioner pulled at him and tried to persuade him to leave, and that petitioner ran before Fuller fired the fatal shot.It is undisputed that Fuller's testimony would have been relevant and material, and that it was vital to the defense. Fuller was the only person other than petitioner who knew exactly who had fired the shotgun and whether petitioner had, at the last minute, attempted to prevent the shooting. Fuller, however, had been previously convicted of the same murder and sentenced to 50 years in prison, [Footnote 3] and he was confined in the Dallas County jail. Two Texas statutes provided at the time of the trial in this case that persons charged or convicted as coparticipants in the same crime could not testify for one another, [Footnote 4] although there was no bar to their testifying Page 388 U. S. 17 for the State. [Footnote 5] On the basis of these statutes, the trial judge sustained the State's objection and refused to allow Fuller to testify. Petitioner's conviction followed, and it was upheld on appeal by the Texas Court of Criminal Appeals. 400 S.W.2d 756. We granted certiorari. 385 U.S. 812. We reverse.IWe have not previously been called upon to decide whether the right of an accused to have compulsory process for obtaining witnesses in his favor, guaranteed in federal trials by the Sixth Amendment, is so fundamental and essential to a fair trial that it is incorporated in the Page 388 U. S. 18 Due Process Clause of the Fourteenth Amendment. [Footnote 6] At one time, it was thought that the Sixth Amendment had no application to state criminal trials. [Footnote 7] That view no longer prevails, and, in recent years, we have increasingly looked to the specific guarantees of the Sixth Amendment to determine whether a state criminal trial was conducted with due process of law. We have held that due process requires that the accused have the assistance of counsel for his defense, [Footnote 8] that he be confronted with the witnesses against him, [Footnote 9] and that he have the right to a speedy [Footnote 10] and public [Footnote 11] trial.The right of an accused to have compulsory process for obtaining witnesses in his favor stands on no lesser footing than the other Sixth Amendment rights that we have previously held applicable to the States. This Court had occasion in In re Oliver, 333 U. S. 257 (1948), to describe what it regarded as the most basic ingredients of due process of law. It observed that:"A person's right to reasonable notice of a charge against him, and an opportunity to be heard in his defense -- a right to his day in court -- are basic in our system of jurisprudence, and these rights include, as a minimum, a right to examine the witnesses against him, to offer testimony, and to be represented by counsel."333 U.S. at 333 U. S. 273 (footnote omitted). Page 388 U. S. 19 The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury, so it may decide where the truth lies. Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.IISince the right to compulsory process is applicable in this state proceeding, the question remains whether it was violated in the circumstances of this case. The testimony of Charles Fuller was denied to the defense not because the State refused to compel his attendance, but because a state statute made his testimony inadmissible whether he was present in the courtroom or not. We are thus called upon to decide whether the Sixth Amendment guarantees a defendant the right under any circumstances to put his witnesses on the stand, as well as the right to compel their attendance in court. The resolution of this question requires some discussion of the common law context in which the Sixth Amendment was adopted.Joseph Story, in his famous Commentaries on the Constitution of the United States, observed that the right to compulsory process was included in the Bill of Rights in reaction to the notorious common law rule that, in cases of treason or felony, the accused was not allowed to introduce witnesses in his defense at all. [Footnote 12] Although Page 388 U. S. 20 the absolute prohibition of witnesses for the defense had been abolished in England by statute before 1787, [Footnote 13] the Framers of the Constitution felt it necessary specifically to provide that defendants in criminal cases should be provided the means of obtaining witnesses so that their own evidence, as well as the prosecution's, might be evaluated by the jury.Despite the abolition of the rule generally disqualifying defense witnesses, the common law retained a number of restrictions on witnesses who were physically and mentally capable of testifying. To the extent that they were applicable, they had the same effect of suppressing the truth that the general proscription had had. Defendants and codefendants were among the large class of witnesses disqualified from testifying on the ground of interest. [Footnote 14] A party to a civil or criminal case was not allowed to testify on his own behalf for fear that he might be tempted to lie. Although originally the disqualification of a codefendant appears to have been based only on his status as a party to the action, and in some jurisdictions co-indictees were allowed to testify for or against each other if granted separate trials, [Footnote 15] other jurisdictions came to the view that accomplices or co-indictees were incompetent to testify at least in favor of each other even at separate trials, and in spite of statutes making a defendant competent to testify in his own behalf. [Footnote 16] Page 388 U. S. 21 It was thought that, if two persons charged with the same crime were allowed to testify on behalf of each other, "each would try to swear the other out of the charge." [Footnote 17] This rule, as well as the other disqualifications for interest, rested on the unstated premises that the right to present witnesses was subordinate to the court's interest in preventing perjury, and that erroneous decisions were best avoided by preventing the jury from hearing any testimony that might be perjured, even if it were the only testimony available on a crucial issue. [Footnote 18]The federal courts followed the common law restrictions for a time, despite the Sixth Amendment. In United States v. Reid, 12 How. 361 (1852), the question was whether one of two defendants jointly indicted for murder on the high seas could call the other as a witness. Although this Court expressly recognized that the Sixth Amendment was designed to abolish some of the harsh rules of the common law, particularly including the refusal to allow the defendant in a serious criminal case to present witnesses in his defense, [Footnote 19] it held that the rules of evidence in the federal courts were those in force in the various States at the time of the passage of the Judiciary Act of 1789, including the disqualification of defendants indicted together. The holding in United States v. Reid was not satisfactory to later generations, however, and, in 1918, this Court expressly overruled it, Page 388 U. S. 22 refusing to be bound by "the dead hand of the common law rule of 1789," and taking note of"the conviction of our time that the truth is more likely to be arrived at by hearing the testimony of all persons of competent understanding who may seem to have knowledge of the facts involved in a case, leaving the credit and weight of such testimony to be determined by the jury or by the court. . . ."Rosen v. United States, 245 U. S. 467, 245 U. S. 471.Although Rosen v. United States rested on nonconstitutional grounds, we believe that its reasoning was required by the Sixth Amendment. In light of the common law history, and in view of the recognition in the Reid case that the Sixth Amendment was designed in part to make the testimony of a defendant's witnesses admissible on his behalf in court, it could hardly be argued that a State would at violate the clause if it made all defense testimony inadmissible as a matter of procedural law. It is difficult to see how the Constitution is any less violated by arbitrary rules that prevent whole categories of defense witnesses from testifying on the basis of a priori categories that presume them unworthy of belief.The rule disqualifying an alleged accomplice from testifying on behalf of the defendant cannot even be defended on the ground that it rationally sets apart a group of persons who are particularly likely to commit perjury. The absurdity of the rule is amply demonstrated by the exceptions that have been made to it. For example, the accused accomplice may be called by the prosecution to testify against the defendant. [Footnote 20] Common sense would suggest that he often has a greater interest in lying in favor of the prosecution, rather than against it, especially if he is still awaiting his own trial or sentencing. To think that criminals will lie to save their fellows but not to obtain favors from the prosecution Page 388 U. S. 23 for themselves is indeed to clothe the criminal class with more nobility than one might expect to find in the public at large. Moreover, under the Texas statutes, the accused accomplice is no longer disqualified if he is acquitted at his own trial. Presumably, he would then be free to testify on behalf of his comrade, secure in the knowledge that he could incriminate himself as freely as he liked in his testimony, since he could not again be prosecuted for the same offense. The Texas law leaves him free to testify when he has a great incentive to perjury, and bars his testimony in situations where he has a lesser motive to lie.We hold that the petitioner in this case was denied his right to have compulsory process for obtaining witnesses in his favor because the State arbitrarily denied him the right to put on the stand a witness who was physically and mentally capable of testifying to events that he had personally observed, and whose testimony would have been relevant and material to the defense. [Footnote 21] The Framers of the Constitution did not intend to commit the futile act of giving to a defendant the right to secure the attendance of witnesses whose testimony he had no right to use. The judgment of conviction must be reversed.It is so ordered

U.S. Supreme CourtWashington v. Texas, 388 U.S. 14 (1967)Washington v. TexasNo. 649Argued March 15-16, 1967Decided June 12, 1967388 U.S. 14SyllabusPetitioner and another were charged with a fatal shooting. Petitioner's alleged co-participant was tried first and convicted of murder. At petitioner's trial for the same murder, he sought to secure his co-participant's testimony, which would have been vital for his defense. On the basis of two Texas statutes which, at the time of trial, prevented a participant accused of a crime from testifying for his coparticipant (but not for the prosecution), the judge sustained the State's objection to the coparticipant's testimony. Petitioner's conviction ensued, and was upheld on appeal.Held:1. The right under the Sixth Amendment of a defendant in a criminal case to have compulsory process for obtaining witnesses in his favor applies to the States through the Fourteenth Amendment. Pp. 388 U. S. 17-19.2. The State arbitrarily denied petitioner the right to have the material testimony for him of a witness concerning events which that witness observed, and thus denied him the right to have compulsory process for obtaining witnesses in his favor. Pp. 388 U. S. 19-23.400 S.W.2d 756, reversed.

1973_73-5280

MR. JUSTICE STEWART delivered the opinion of the Court.In this case, we are called upon to determine whether Oregon may constitutionally require a person convicted of a criminal offense to repay to the State the costs of providing him with effective representation of counsel, when he is indigent at the time of the criminal proceedings but subsequently acquires the means to bear the costs of his legal defense.The petitioner Fuller pleaded guilty, on July 20, 1972, to an information charging him with sodomy in the third degree. [Footnote 1] At the hearing on the plea and in other court proceedings, he was represented by a local member of the bar appointed by the court upon the petitioner's representation that he was indigent and unable to hire a lawyer. Fuller's counsel, in turn, hired an investigator to aid in gathering facts for his defense, and the investigator's fees were also assumed by the State. Fuller was Page 417 U. S. 42 subsequently sentenced to five years of probation, conditioned upon his satisfactorily complying with the requirements of a work-release program at the county jail that would permit him to attend college, and also upon his reimbursement to the county of the fees and expenses of the attorney and investigator whose services had been provided him because of his indigent status. On appeal to the Oregon Court of Appeals, his principal contention was that the State could not constitutionally condition his probation on the repayment of these expenses. [Footnote 2] With one judge dissenting, the imposition of his sentence was affirmed, 12 Ore.App. 152, 504 P.2d 1393, and the Supreme Court of Oregon subsequently denied Fuller's petition for review. Because of the importance of the question presented and the conflict of opinion on the constitutional issue involved, [Footnote 3] we granted certiorari, 414 U.S. 1111. Page 417 U. S. 43IWe begin with consideration of the plan and operation of the challenged statute. By force of interpretation of the State's Constitution and comprehensive legislation, Oregon mandates that every defendant in a criminal case must be assigned a lawyer at state expense if "[i]t appears to the court that the defendant is without means and is unable to obtain counsel." Ore.Rev.Stat. § 135.050(1)(d) (1973). [Footnote 4] As part of a recoupment statute passed in 1971, Oregon requires that, in some cases, all or part of the "expenses specially incurred by the state in prosecuting the defendant," § 161.665(2), be repaid to the State, and that, when a convicted person is placed on probation, repayment of such expenses may be made a condition of probation. [Footnote 5] These expenses include the costs of the convicted person's legal defense. [Footnote 6] Page 417 U. S. 44As the Oregon appellate court noted in its opinion in this case, however, the requirement of repayment "is never mandatory." 12 Ore.App. at 156, 504 P.2d Page 417 U. S. 45 at 1395. Rather, several conditions must be satisfied before a person may be required to repay the costs of his legal defense. First, a requirement of repayment may be imposed only upon a convicted defendant; those who are acquitted, whose trials end in mistrial or dismissal, and those whose convictions are overturned upon appeal face no possibility of being required to pay. Ore.Rev.Stat. § 161.665(1). Second, a court may not order a convicted person to pay these expenses unless he "is or will be able to pay them." § 161.665(3). The sentencing court must "take account of the financial resources of the defendant and the nature of the burden that payment of costs will impose." Ibid. As the Oregon court put the matter in this case, no requirement to repay may be imposed if it appears at the time of sentencing that "there is no likelihood that a defendant's indigency will end. . . ." 12 Ore.App. at 159, 504 P.2d at 1397. Third, a convicted person under an obligation to repay "may at any time petition the court which sentenced him for remission of the payment of costs or of any unpaid portion thereof." Ore.Rev.Stat. § 161.665(4). The court is empowered to remit if payment "will impose manifest hardship on the defendant or his immediate Page 417 U. S. 46 family. . . ." Ibid. Finally, no convicted person may be held in contempt for failure to repay if he shows that"his default was not attributable to an intentional refusal to obey the order of the court or to a failure on his part to make a good faith effort to make the payment. . . ."§ 161.685(2).Thus, the recoupment statute is quite clearly directed only at those convicted defendants who are indigent at the time of the criminal proceedings against them but who subsequently gain the ability to pay the expenses of legal representation. Defendants with no likelihood of having the means to repay are not put under even a conditional obligation to do so, and those upon whom a conditional obligation is imposed are not subjected to collection procedures until their indigency has ended and no "manifest hardship" will result. The contrast with appointment of counsel procedures in States without recoupment requirements [Footnote 7] is thus relatively small: a lawyer is provided at the expense of the State to all defendants who are unable, even momentarily, to hire one, and the obligation to repay the State accrues only to those who later acquire the means to do so without hardship.IIThe petitioner's first contention is that Oregon's recoupment system violates the Equal Protection Clause of the Fourteenth Amendment because of various classifications explicitly or implicitly drawn by the legislative provisions. He calls attention to our decision in James v. Strange, 407 U. S. 128, which held invalid under the Equal Protection Clause a law enacted by Kansas that Page 417 U. S. 47 was somewhat similar to the legislation now before us. But the offending aspect of the Kansas statute was its provision that, in an action to compel repayment of counsel fees,"[n]one of the exemptions provided for in the code of civil procedure [for collection of other judgment debts] shall apply to any such judgment . . . ,"Kan.Stat.Ann. § 22-4513(a) (Supp. 1971), a provision which "strip[ped] from indigent defendants the array of protective exemptions Kansas has erected for other civil judgment debtors. . . ." 407 U.S. at 407 U. S. 135. [Footnote 8] The Court found that the elimination of the exemptions normally available to judgment debtors "embodie[d] elements of punitiveness and discrimination which violate the rights of citizens to equal treatment under the law." Id. at 407 U. S. 142.The Oregon statute under consideration here suffers from no such infirmity. As the Oregon Court of Appeals observed, "[n]o denial of the exemptions from execution afforded to other judgment debtors is included in the Oregon statutes." 12 Ore.App. at 159, 504 P.2d at 1397. Indeed, a separate provision directs that"[a] judgment that the defendant pay money, either as a fine or as costs and disbursements of the action, or both, shall be docketed as a judgment in a civil action and with like effect. . . ."Ore.Rev.Stat. § 137.180. The convicted person from whom recoupment is sought thus retains all the exemptions accorded other judgment debtors, in addition to the opportunity to show at any time that recovery of the costs of his legal defense will impose "manifest hardship," § 161.665(4). The legislation before us, Page 417 U. S. 48 therefore, is wholly free of the kind of discrimination that was held in James v. Strange to violate the Equal Protection Clause. [Footnote 9]The petitioner contends further, however, that the Oregon statute denies equal protection of the laws in another way -- by discriminating between defendants who Page 417 U. S. 49 are convicted, on the one hand, and those who are not convicted or whose convictions are reversed, on the other. Our review of this distinction, of course, is a limited one. As the Court stated in James v. Strange: "We do not inquire whether this statute is wise or desirable. . . . Misguided laws may nonetheless be constitutional." 407 U.S. at 407 U. S. 133. Our task is merely to determine whether there is "some rationality in the nature of the class singled out." Rinaldi v. Yeager, 384 U. S. 305, 384 U. S. 308-309. See also McGinnis v. Royster, 410 U. S. 263; McGowan v. Maryland, 366 U. S. 420. In Rinaldi, the Court found impermissible New Jersey's decision to single out prisoners confined to state institutions for imposition of an obligation to repay to the State costs incurred in providing free transcripts of trial court proceedings required by this Court's decision in Griffin v. Illinois, 351 U. S. 12. The legislative decision to tax those confined to prison but not those also convicted but given a suspended sentence, probation, or a fine without imprisonment was found to be invidiously discriminatory, and thus violative of the requirements of the Equal Protection Clause. In the case before us, however, the sole distinction is between those who are ultimately convicted and those who are not. [Footnote 10]We conclude that this classification is wholly noninvidious. A defendant whose trial ends without conviction Page 417 U. S. 50 or whose conviction is overturned on appeal has been seriously imposed upon by society without any conclusive demonstration that he is criminally culpable. His life has been interrupted and subjected to great stress, and he may have incurred financial hardship through loss of job or potential working hours. His reputation may have been greatly damaged. The imposition of such dislocations and hardships without an ultimate conviction is, of course, unavoidable in a legal system that requires proof of guilt beyond a reasonable doubt and guarantees important procedural protections to every defendant in a criminal trial. But Oregon could surely decide with objective rationality that, when a defendant has been forced to submit to a criminal prosecution that does not end in conviction, he will be freed of any potential liability to reimburse the State for the costs of his defense. This legislative decision reflects no more than an effort to achieve elemental fairness, and is a far cry from the kind of invidious discrimination that the Equal Protection Clause condemns. [Footnote 11] Page 417 U. S. 51IIIThe petitioner's second basic contention is that Oregon's recoupment statute infringes upon his constitutional right to have counsel provided by the State when he is unable because of indigency to hire a lawyer. Gideon v. Wainwright, 372 U. S. 335; Argersinger v. Hamlin, 407 U. S. 25. The argument is not that the legal representation actually provided in this case was ineffective or insufficient. Nor does the petitioner claim that the fees and expenses he may have to repay constitute unreasonable compensation for the defense provided him. Rather, he asserts that a defendant's knowledge that he may remain under an obligation to repay the expenses incurred in providing him legal representation might impel him to decline the services of an appointed attorney, and thus "chill" his constitutional right to counsel.This view was articulated by the Supreme Court of California, in a case invalidating California's recoupment legislation, in the following terms:"[W]e believe that, as knowledge of [the recoupment] practice has grown and continues to grow, many indigent defendants will come to realize that the judge's offer to supply counsel is not the gratuitous offer of assistance that it might appear to be; that, in the event the case results in a grant of probation, one of the conditions might well be the reimbursement of the county for the expense involved. This knowledge is quite likely to deter or discourage many defendants from accepting the offer of counsel despite the gravity of the need for such representation as emphasized by the [Supreme] [C]ourt in Gideon. . . ."In re Allen, 71 Cal. 2d 388, 391, 455 P.2d 143, 144. Page 417 U. S. 52 We have concluded that this reasoning is wide of the constitutional mark.The focal point of this Court's decisions securing the right to state-appointed counsel for indigents was the "noble ideal" that every criminal defendant be guaranteed not only"procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law,"but also the expert advice necessary to recognize and take advantage of those safeguards. Gideon v. Wainwright, supra, at 372 U. S. 344. In the now familiar words of the Court's seminal opinion in Powell v. Alabama, 287 U. S. 45, 287 U. S. 68-69, quoted in Gideon at 372 U. S. 344-345:"The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel, he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence."Oregon's system for providing counsel quite clearly does not deprive any defendant of the legal assistance necessary to meet these needs. As the State Court of Appeals observed in this case, an indigent is entitled to Page 417 U. S. 53 free counsel "when he needs it" -- that is, during every stage of the criminal proceedings against him. 12 Ore.App. at 1515, 504 P.2d at 136. The fact that an indigent who accepts state-appointed legal representation knows that he might someday be required to repay the costs of these services in no way affects his eligibility to obtain counsel. The Oregon statute is carefully designed to insure that only those who actually become capable of repaying the State will ever be obliged to do so. [Footnote 12] Those who remain indigent or for whom repayment would work "manifest hardship" are forever exempt from any obligation to repay.We live in a society where the distribution of legal assistance, like the distribution of all goods and services, is generally regulated by the dynamics of private enterprise. A defendant in a criminal case who is just above the line separating the indigent from the nonindigent must borrow money, sell off his meager assets, or call upon his family or friends in order to hire a lawyer. We cannot say that the Constitution requires that those only slightly poorer must remain forever immune from any Page 417 U. S. 54 obligation to shoulder the expenses of their legal defense, even when they are able to pay without hardship.This case is fundamentally different from our decisions relied on by the petitioner which have invalidated state and federal laws that placed a penalty on the exercise of a constitutional right. See Uniformed Sanitation Men v. Sanitation Comm'r, 392 U. S. 280; Gardner v. Broderick, 392 U. S. 273; United States v. Jackson, 390 U. S. 570. Unlike the statutes found invalid in those cases, where the provisions "had no other purpose or effect than to chill the assertion of constitutional rights by penalizing those who choose to exercise them," id. at 390 U. S. 581, Oregon's recoupment statute merely provides that a convicted person who later becomes able to pay for his counsel may be required to do so. Oregon's legislation is tailored to impose an obligation only upon those with a foreseeable ability to meet it, and to enforce that obligation only against those who actually become able to meet it without hardship.The judgment of the Court of Appeals of Oregon is affirmed.It is so ordered

U.S. Supreme CourtFuller v. Oregon, 417 U.S. 40 (1974)Fuller v. OregonNo. 73-5280Argued March 26, 1974Decided May 20, 1974417 U.S. 40SyllabusPetitioner, who pleaded guilty to a crime and was given a probationary sentence, conditioned upon his complying with a jail work-release program permitting him to attend college and also upon his reimbursing the county for the fees and expenses of an attorney and investigator whose services had been provided him because of his indigency, attacks the constitutionality of Oregon's recoupment statute, which was upheld on appeal. That law requires convicted defendants who are indigent at the time of the criminal proceedings against them but who subsequently acquire the financial means to do so, to repay the costs of their legal defense. Defendants with no likelihood of having the means to repay are not even conditionally obligated to do so, and those thus obligated are not subjected to collection procedures until their indigency has ended and no manifest hardship will result.Held:1. The Oregon recoupment scheme does not violate the Equal Protection Clause of the Fourteenth Amendment. Pp. 417 U. S. 46-50.(a) The statute retains all the exemptions accorded to other judgment debtors, in addition to the opportunity to show that recovery of legal defense costs will impose "manifest hardship." James v. Strange, 407 U. S. 128, distinguished. Pp. 417 U. S. 46-48.(b) The statutory distinction between those who are convicted, on the one hand, and those who are not or whose convictions are reversed, on the other, is not an invidious classification, since the Legislative decision not to impose a repayment obligation on a defendant forced to submit to criminal prosecution that does not end in conviction is objectively rational. Pp. 417 U. S. 48-50.2. The Oregon law does not infringe upon a defendant's right to counsel, since the knowledge that he may ultimately have to repay the costs of legal services does not affect his ability to obtain such services. The challenged statute is thus not similar to a provision that "chill[s] the assertion of constitutional rights by penalizing those who choose to exercise them," United States v. Jackson, 390 U. S. 570, 390 U. S. 581. Pp. 417 U. S. 51-54.12 Ore.App. 152, 504 P.2d 1393, affirmed. Page 417 U. S. 41STEWART J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. DOUGLAS, J., filed an opinion concurring in the judgment, post, p. 417 U. S. 54. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 417 U. S. 59.

1965_750

MR. JUSTICE DOUGLAS delivered the opinion of the Court.This controversy started with a union demand on behalf of the nonoperating employees for a general 25-cent-per-hour wage increase and a requirement of six months' advance notice of impending layoffs and abolition of job positions. The demand was made of virtually all Class I railroads, including Florida East Coast Railway Co. (hereinafter called FEC). The dispute underwent negotiations and mediation as required by the Railway Labor Act. [Footnote 1] When those procedures proved unsuccessful, a Presidential Emergency Board was created Page 384 U. S. 241 under § 10 of the Act, [Footnote 2] which, after hearings, recommended a general pay increase of about 10 cents per hour and a requirement of at least five days' notice before job abolition. In June, 1962, this settlement was accepted by all the carriers except FEC. Thereupon, further mediation was invoked under the Act, but again no settlement was reached. The Act makes no provision for compulsory arbitration. Section 5 First [Footnote 3] does, however, provide for voluntary arbitration at the suggestion of the National Mediation Board. The suggestion was made, but both the unions and FEC refused. Further negotiations were unsuccessful, and, on January 23, 1963, the nonoperating unions struck. When that happened, most operating employees refused to cross the picket lines.FEC shut down for a short period, and then, on February 3, 1963, resumed operations by employing supervisory personnel and replacements to fill the jobs of the strikers and of those operating employees who would not cross the picket lines. FEC made individual agreements with the replacements concerning their rates of pay, rules and working agreements on terms substantially different from those in the outstanding collective bargaining agreements with the various unions. Thereafter, FEC proposed formally to abolish all the existing collective bargaining agreements and to substitute another agreement that would make rather sweeping departures in numerous respects from the existing collective bargaining agreements. Negotiations between FEC and the unions broke down. The unions then invoked the mediation services of the National Mediation Board relative to the proposed changes, but the carrier refused. Page 384 U. S. 242 The unions thereafter agreed to submit the underlying dispute -- the one concerning wages and notice -- to arbitration. But FEC refused arbitration, and, shortly thereafter, established another new agreement by unilateral action and operated under it until the present action was instituted by the United States in 1964 -- a suit charging that the unilateral promulgation of the new agreement violated the Act. [Footnote 4] The nonoperating unions intervened as plaintiffs, and hearings were held. Meanwhile, the Court of Appeals decided Florida East Coast R. Co. v. Brotherhood of R. Trainmen, 336 F.2d 172, a parallel injunctive suit brought against FEC by an operating union and similarly complaining of FEC's unilateral promulgation of the new agreement. That court held that FEC had violated the Act by its unilateral abrogation of the existing collective bargaining agreements. It ruled, however, that FEC could unilaterally institute such changes in its existing agreements as the District Court found to be "reasonably necessary to effectuate its right to continue to run its railroad under the strike conditions." 336 F.2d, at 182. The District Court thereafter entered injunctions in the Trainmen case and in the present case, requiring FEC to abide by all the rates of pay, rules, and working conditions specified in the existing collective bargaining agreements until the termination of the statutory mediation procedure "except upon specific authorization of this Court after a finding of reasonable necessity therefor upon application of the FEC to this Court." Page 384 U. S. 243Thereupon, FEC filed an application for approval of some departures from its existing agreements with its nonoperating unions. The District Court, after hearings, granted some requests and denied others. Thus, it permitted FEC to exceed the ratio of apprentices to journeymen and age limitations established by the collective bargaining agreements, to contract out certain work, and to use supervisory personnel to perform certain specified jobs where it appeared that trained personnel were unavailable. The District Court denied FEC's request that it be permitted to disregard completely craft and seniority district restrictions, that it be allowed to use supervisors to perform craft work whenever it desired, that it be relieved of the duty to provide seniority rosters, that it be permitted to contract out work whenever trained personnel were unavailable, and that the union shop be declared void and unenforceable as to employees hired after January 23, 1963. Both sides appealed. The Court of Appeals affirmed on the basis of its decision in the Trainmen case. 348 F.2d 682. The unions, the United States, and FEC each petitioned for a writ of certiorari, which we granted. 382 U.S. 1008.The controversy centers around § 2 Seventh of the Act, [Footnote 5] which provides:"No carrier, its officers or agents shall change the rates of pay, rules, or working conditions of its employees, as a class as embodied in agreements except in the manner prescribed in such agreements or in section 6 of this Act."The demand for a 25-cent-per-hour wage increase and for six months' advance notice of impending layoffs and job abolitions was a major dispute covered by § 2 Seventh (Elgin, J. & E. R. Co. v. Burley, 325 U. S. 711, 325 U. S. 723) and it had proceeded through all the major dispute procedures Page 384 U. S. 244 required by the Act without settlement. 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.At that juncture, self-help was also available to the carrier, as we held in Locomotive Engineers v. Baltimore & Ohio R. Co., 372 U. S. 284, 372 U. S. 291. ". . . both parties, having exhausted all of the statutory procedures, are relegated to self-help in adjusting this dispute. . . ."The carrier's right of self-help is underlined by the public service aspects of its business. "More is involved than the settlement of a private controversy without appreciable consequences to the public." Virginian Ry. Co. v. Federation, 300 U. S. 515, 300 U. S. 552. The Interstate Commerce Act, 24 Stat. 379, as amended, places a responsibility on common carriers by rail to provide transportation. [Footnote 6] Page 384 U. S. 245 The duty runs not to shippers alone, but to the public. In our complex society, metropolitan areas in particular might suffer a calamity if rail service for freight or for passengers were stopped. Food and other critical supplies might be dangerously curtailed; vital services might be impaired; whole metropolitan communities might be paralyzed.We emphasize these aspects of the problem not to say that the carrier's duty to operate is absolute, but only to emphasize that it owes the public reasonable efforts to maintain the public service at all times, even when beset by labor-management controversies, and that this duty continues even when all the mediation provisions of the Act have been exhausted and self-help becomes available to both sides of the labor-management controversy.If all that were involved were the pay increase and the notice to be given on layoffs or job abolition, the problem would be simple. The complication arises because the carrier, having undertaken to keep its vital services going with a substantially different labor force, finds it necessary or desirable to make other changes in the collective bargaining agreements. Thus, we find FEC in this case anxious to exceed the ratio of apprentices to journeymen and the age limitations in the collective bargaining agreements, to make changes in the contracting-out provisions, to disregard requirements for trained personnel, to discard craft and seniority restrictions, the union shop provision, and so on. Each of these technically is included in the words "rules, or working conditions of its employees, as a class as embodied in agreements" within the meaning of § 2 Seventh of the Act. It is therefore argued with force that each of these issues must run the same gauntlet of negotiation and mediation, as did the pay and notice provisions that gave rise to this strike. Page 384 U. S. 246The practical effect of that conclusion would be to bring the railroad operations to a grinding halt. For the procedures of the Act are purposely long and drawn out, based on the hope that reason and practical considerations will provide in time an agreement that resolves the dispute. If, therefore, § 2 Seventh is applicable after a lawful strike has been called and after lawful self-help has been invoked by the carrier, the right of self-help might well become unilateral to the workers alone, and denied the carrier. For when a carrier improvises and employs an emergency labor force, it may or may not be able to comply with the terms of a collective bargaining agreement, drafted to meet the sophisticated requirements of a trained and professional labor force. The union remains the bargaining representative of all the employees in the designated craft, whether union members or not. Steele v. Louisville & N. R. Co., 323 U. S. 192. All these employees of the railroad are entitled to the benefits of the collective bargaining agreement, and the carrier may not supersede the agreement by individual contracts even though particular employees are willing to enter into them. See Telegraphers v. Railway Express Agency, 321 U. S. 342, 321 U. S. 347. But when a strike occurs, both the carrier's right of self-help and its duty to operate, if reasonably possible, might well be academic if it could not depart from the terms and conditions of the collective bargaining agreement without first following the lengthy course the Act otherwise prescribes.At the same time, any power to change or revise the basic collective agreement must be closely confined and supervised. These collective bargaining agreements are the product of years of struggle and negotiation; they represent the rules governing the community of striking employees and the carrier. That community is not destroyed by the strike, as the strike represents only an Page 384 U. S. 247 interruption in the continuity of the relation. [Footnote 7] Were a strike to be the occasion for a carrier to tear up and annul, so to speak, the entire collective bargaining agreement, labor-management relations would revert to the jungle. A carrier could then use the occasion of a strike over a simple wage and hour dispute to make sweeping changes in its work rules so as to permit operation on terms which could not conceivably have been obtained through negotiation. Having made such changes, a carrier might well have little incentive to reach a settlement of the dispute that led to the strike. It might indeed have a strong reason to prolong the strike, and even break the union. The temptation might be strong to precipitate a strike in order to permit the carrier to abrogate the entire collective bargaining agreement on terms most favorable to it. The processes of bargaining and mediation called for by the Act would indeed become a sham if a carrier could unilaterally achieve what the Act requires be done by the other orderly procedures.While the carrier has the duty to make all reasonable efforts to continue its operations during a strike, its power to make new terms and conditions governing the new labor force is strictly confined if the spirit of the Railway Labor Act is to be honored. [Footnote 8] The Court of Appeals used Page 384 U. S. 248 the words "reasonably necessary." We do not disagree, provided that "reasonably necessary" is construed strictly. The carrier must respect the continuing status of the collective bargaining agreement and make only such changes as are truly necessary in light of the inexperience and lack of training of the new labor force or the lesser number of employees available for the continued operation. The collective bargaining agreement remains the norm; the burden is on the carrier to show the need for any alteration of it, as respects the new and different class of employees that it is required to employ in order to maintain that continuity of operation that the law requires of it.Affirmed

U.S. Supreme CourtRailway Clerks v. Florida E. C. R. Co., 384 U.S. 238 (1966)Brotherhood of Railway & Steamship Clerks,Freight Handlers, Express & Station Employees,AFL-CIO v. Florida East Coast Railway Co.No. 750Argued April 20, 1966Decided May 23, 1966*384 U.S. 238SyllabusFollowing union demands for a 25� hourly wage increase and a six months' notice requirement for layoffs and job abolitions made on behalf of nonoperating railroad employees of virtually all Class I railroads, including the Florida East Coast Railway Company (FEC), negotiations and mediation occurred under the Railway Labor Act. Section 2 Seventh provides in part that no carrier shall change employee pay rates, rules, or working conditions as embodied in agreements except as prescribed in such agreements or in § 6, which, together with § 5, requires negotiation and mediation. Thereafter, following hearings, a Presidential Emergency Board constituted under § 10 recommended, and all the carriers but FEC accepted, a pay increase of about 10� an hour and a five days' notice before job abolitions. Following further mediation under the Act, the parties' refusal voluntarily to arbitrate as suggested by the National Mediation Board, and further unsuccessful negotiations, the nonoperating unions struck, and most operating employees refused to cross the picket lines. After a brief shutdown, FEC resumed operations with a substantially different labor force consisting of supervisory personnel and replacements, with whom it made individual employment agreements which were substantially different from the existing collective bargaining agreements. FEC refused union-proposed mediation by the National Mediation Board. Then, although both sides had rejected arbitration prior to the strike, the unions changed their position and urged arbitration; again, FEC refused. The Government brought this suit, in which the nonoperating unions intervened as plaintiffs, charging that FEC's unilateral departures Page 384 U. S. 239 from the collective bargaining agreements violated the Act. In a parallel injunctive suit against FEC by an operating union, the Court of Appeals held that, while FEC could not abrogate the existing collective bargaining agreements, it could make such changes in the agreements as the District Court found were "reasonably necessary" for it to operate under strike conditions. Florida East Coast R. Co. v. Brotherhood of R. Trainmen, 336 F.2d 172. The District Court, in the Trainmen case and this case, enjoined FEC to adhere to the collective bargaining agreements except upon court authorization after a finding that such changes were "reasonably necessary" for continued operations under strike conditions. FEC applied to the District Court for permission to make numerous departures from the existing agreements, some of which that court sanctioned and some of which it disallowed. Both sides appealed, and, following the Trainmen case, the Court of Appeals affirmed.Held:1. All the procedures for settlement of the major dispute involved under § 2 Seventh of the Act arising from the unions' demands having been exhausted, the unions were warranted in striking; at that point, self-help was also available to the carrier. Pp. 384 U. S. 243-244.2. A carrier, though not under an absolute duty to operate, must make reasonable efforts to maintain public service even during a strike. P. 384 U. S. 245.3. After a strike occurs, the carrier, if its right of self-help and its duty to operate are to be meaningful, must be allowed to depart from the collective bargaining agreement without first following the Act's lengthy courts for negotiation and mediation. P. 384 U. S. 246.4. If, however, the spirit of the Act is to be honored, a carrier's power to make new terms governing its replacement labor force must be strictly confined to those truly necessary in light of the new labor force's inexperience or the lesser number of employees available for continued operation. Pp. 384 U. S. 246-248.5. FEC, which did not refuse arbitration until after the strike had begun and its right of self-help had accrued, was not precluded from seeking the assistance of the federal court. Trainmen v. Toledo, P. & W. R. Co., 321 U. S. 50, distinguished. Pp. 384 U. S. 247-248.348 F.2d 682 affirmed. Page 384 U. S. 240

2001_00-1187

Syllabus(2) Respondent's decision not to participate in the SATP did not extend his prison term or affect his eligibility for good-time credits or parole. He instead complains about his possible transfer from the medium-security unit where the program is conducted to a less desirable maximum-security unit. The transfer, however, is not intended to punish prisoners for exercising their Fifth Amendment rights. Rather, it is incidental to a legitimate penological reason: Due to limited space, inmates who do not participate in their respective programs must be moved out of the facility where the programs are held to make room for other inmates. The decision where to house inmates is at the core of prison administrators' expertise. See Meachum v. Fano, 427 U. S. 215, 225. Respondent also complains that his privileges will be reduced. An essential tool of prison administration, however, is the authority to offer inmates various incentives to behave. The Constitution accords prison officials wide latitude to bestow or revoke these perquisites as they see fit. See Hewitt v. Helms, 459 U. S. 460, 467, n. 4. Respondent fails to cite a single case from this Court holding that the denial of discrete prison privileges for refusal to participate in a rehabilitation program amounts to unconstitutional compulsion. Instead, he relies on the so-called penalty cases, see, e. g., Spevack v. Klein, 385 U. S. 511, which involved free citizens given the choice between invoking the Fifth Amendment privilege and sustaining their economic livelihood, see, e. g., id., at 516. Those cases did not involve legitimate rehabilitative programs conducted within prison walls, and they are not easily extended to the prison context, where inmates surrender their rights to pursue a livelihood and to contract freely with the State. pp. 38-41.(3) Determining what constitutes unconstitutional compulsion involves a question of judgment: Courts must decide whether the consequences of an inmate's choice to remain silent are closer to the physical torture against which the Constitution clearly protects or the de minimis harms against which it does not. The Sandin framework provides a reasonable means of assessing whether the response of prison administrators to correctional and rehabilitative necessities are so out of the ordinary that one could sensibly say they rise to the level of unconstitutional compulsion. P. 41.(d) Prison context or not, respondent's choice is marked less by compulsion than by choices the Court has held give no rise to a selfincrimination claim. The cost to respondent of exercising his Fifth Amendment privilege-denial of certain perquisites that make his life in prison more tolerable-is much less than that borne by the defendant in, e. g., McGautha v. California, 402 U. S. 183, 217, where the Court upheld a procedure that allowed statements made by a criminal defend-27ant to mitigate his responsibility and avoid the death penalty to be used against him as evidence of his guilt. The hard choices faced by the defendants in, e. g., Baxter v. Palmigiano, supra, at 313; Ohio Adult Parole Authority v. Woodard, 523 U. S. 272, 287-288; and Minnesota v. Murphy, 465 U. S. 420, 422, further illustrate that the consequences respondent faced did not amount to unconstitutional compulsion. Respondent's attempt to distinguish the latter cases on dual grounds-that (1) the penalty here followed automatically from his decision to remain silent, and (2) his participation in the SATP was involuntary-is unavailing. Neither distinction would justify departing from this Court's precedents. Pp.41-45.(e) Were respondent's position to prevail, there would be serious doubt about the constitutionality of the federal sex offender treatment program, which is comparable to the Kansas program. Respondent is mistaken as well to concentrate on a so-called reward/penalty distinction and an illusory baseline against which a change in prison conditions must be measured. Finally, respondent's analysis would call into question the constitutionality of an accepted feature of federal criminal law, the downward adjustment of a sentence for acceptance of criminal responsibility. Pp.45-47.JUSTICE O'CONNOR acknowledged that the Court is divided on the appropriate standard for evaluating compulsion for purposes of the Fifth Amendment privilege against self-incrimination in a prison setting, but concluded that she need not resolve this dilemma because this case indisputably involves burdens rather than benefits, and because the penalties assessed against respondent as a result of his failure to participate in the Sexual Abuse Treatment Program (SATP) are not compulsive on any reasonable test. The Fifth Amendment's text does not prohibit all penalties levied in response to a person's refusal to incriminate himself or herself-it prohibits only the compulsion of such testimony. The Court's so-called "penalty cases" establish that the potentialloss of one's livelihood through, e. g., the loss of employment, Uniformed Sanitation Men Assn., Inc. v. Commissioner of Sanitation of City of New York, 392 U. S. 280, and the loss of the right to participate in political associations and to hold public office, Lefkowitz v. Cunningham, 431 U. S. 801, are capable of coercing incriminating testimony. Such penalties, however, are far more significant that those facing respondent: a reduction in incentive level and a corresponding transfer from medium to maximum security. In practical terms, these changes involve restrictions on respondent's prison privileges and living conditions that seem minor. Because the prison is responsible for caring for respondent's basic needs, his ability to support himself is not implicated28Syllabusby the reduction of his prison wages. While his visitation is reduced, he still retains the ability to see his attorney, his family, and clergy. The limitation on his possession of personal items, as well as the amount he is allowed to spend at the canteen, may make his prison experience more unpleasant, but seems very unlikely to actually compel him to incriminate himself. Because it is his burden to prove compulsion, it may be assumed that the prison is capable of controlling its inmates so that respondent's personal safety is not jeopardized by being placed in maximum security, at least in the absence of proof to the contrary. Finally, the mere fact that the penalties facing respondent are the same as those imposed for prison disciplinary violations does not make them coercive. Thus, although the plurality's failure to set forth a comprehensive theory of the Fifth Amendment privilege against selfincrimination is troubling, its determination that the decision below should be reversed is correct. Pp. 48-54.KENNEDY, J., announced the judgment of the Court and delivered an opinion, in which REHNQUIST, C. J., and SCALIA and THOMAS, JJ., joined. O'CONNOR, J., filed an opinion concurring in the judgment, post, p. 48. STEVENS, J., filed a dissenting opinion, in which SOUTER, GINSBURG, and BREYER, JJ., joined, post, p. 54.Stephen R. McAllister, State Solicitor of Kansas, argued the cause for petitioners. With him on the briefs were Carla J. Stovall, Attorney General, Jared S. Maag, and Timothy G. Madden.Gregory G. Garre argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Olson, Acting Assistant Attorney General Schiffer, Deputy Solicitor General Clement, and Vicki Marani.Matthew J. Wiltanger argued the cause for respondent.With him on the brief was Paul W Rebein. ** A brief of amici curiae urging reversal was filed for the State of Ohio et al. by Betty D. Montgomery, Attorney General of Ohio, David M. Gormley, State Solicitor, Todd R. Marti, Assistant Solicitor, Mike McGrath, Attorney General of Montana, Jenifer Anders, Assistant Attorney General, and by the Attorneys General for their respective States as follows:Bill Pryor of Alabama, Janet Napolitano of Arizona, Ken Salazar of Colorado, M. Jane Brady of Delaware, Robert A. Butterworth of Florida, Steve29JUSTICE KENNEDY announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE, JusTICE SCALIA, and JUSTICE THOMAS join.Respondent Robert G. Lile is a convicted sex offender in the custody of the Kansas Department of Corrections (Department). A few years before respondent was scheduled to reenter society, Department officials recommended that he enter a prison treatment program so that he would not rape again upon release. While there appears to be some difference of opinion among experts in the field, Kansas officials and officials who administer the United States prison system have made the determination that it is of considerable importance for the program participant to admit having committed the crime for which he is being treated and other past offenses. The first and in many ways most crucial step in the Kansas rehabilitation program thus requires the participant to confront his past crimes so that he can begin to understand his own motivations and weaknesses. As this initial step can be a most difficult one, Kansas offers sex offenders incentives to participate in the program.Respondent contends this incentive system violates his Fifth Amendment privilege against self-incrimination. Kansas' rehabilitation program, however, serves a vital penological purpose, and offering inmates minimal incentives to participate does not amount to compelled self-incrimination prohibited by the Fifth Amendment.IIn 1982, respondent lured a high school student into his car as she was returning home from school. At gunpoint, respondent forced the victim to perform oral sodomy on himCarter of Indiana, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Patricia A. Madrid of New Mexico, Charles M. Condon of South Carolina, Mark L. Shurtleff of Utah, Randolph A. Beales of Virginia, Christine O. Gregoire of Washington, and Gay Woodhouse of Wyoming.30Opinion of KENNEDY, J.and then drove to a field where he raped her. After the sexual assault, the victim went to her school, where, crying and upset, she reported the crime. The police arrested respondent and recovered on his person the weapon he used to facilitate the crime. State v. Lile, 237 Kan. 210, 211-212, 699 P. 2d 456, 457-458 (1985). Although respondent maintained that the sexual intercourse was consensual, a jury convicted him of rape, aggravated sodomy, and aggravated kidnaping. Both the Kansas Supreme Court and a Federal District Court concluded that the evidence was sufficient to sustain respondent's conviction on all charges. See id., at 211, 699In 1994, a few years before respondent was scheduled to be released, prison officials ordered him to participate in a Sexual Abuse Treatment Program (SATP). As part of the program, participating inmates are required to complete and sign an "Admission of Responsibility" form, in which they discuss and accept responsibility for the crime for which they have been sentenced. Participating inmates also are required to complete a sexual history form, which details all prior sexual activities, regardless of whether such activities constitute uncharged criminal offenses. A polygraph examination is used to verify the accuracy and completeness of the offender's sexual history.While information obtained from participants advances the SATP's rehabilitative goals, the information is not privileged. Kansas leaves open the possibility that new evidence might be used against sex offenders in future criminal proceedings. In addition, Kansas law requires the SATP staff to report any uncharged sexual offenses involving minors to law enforcement authorities. Although there is no evidence that incriminating information has ever been disclosed under the SATP, the release of information is a possibility.Department officials informed respondent that if he refused to participate in the SATP, his privilege status would be reduced from Level III to LevelL As part of this reduc-31tion, respondent's visitation rights, earnings, work opportunities, ability to send money to family, canteen expenditures, access to a personal television, and other privileges automatically would be curtailed. In addition, respondent would be transferred to a maximum-security unit, where his movement would be more limited, he would be moved from a twoperson to a four-person cell, and he would be in a potentially more dangerous environment.Respondent refused to participate in the SATP on the ground that the required disclosures of his criminal history would violate his Fifth Amendment privilege against selfincrimination. He brought this action under Rev. Stat. § 1979, 42 U. S. C. § 1983, against the warden and the secretary of the Department, seeking an injunction to prevent them from withdrawing his prison privileges and transferring him to a different housing unit.After the parties completed discovery, the United States District Court for the District of Kansas entered summary judgment in respondent's favor. 24 F. Supp. 2d 1152 (1998). The District Court noted that because respondent had testified at trial that his sexual intercourse with the victim was consensual, an acknowledgment of responsibility for the rape on the "Admission of Guilt" form would subject respondent to a possible charge of perjury. Id., at 1157. After reviewing the specific loss of privileges and change in conditions of confinement that respondent would face for refusing to incriminate himself, the District Court concluded that these consequences constituted coercion in violation of the Fifth Amendment.The Court of Appeals for the Tenth Circuit affirmed. 224 F.3d 1175 (2000). It held that the compulsion element of a Fifth Amendment claim can be established by penalties that do not constitute deprivations of protected liberty interests under the Due Process Clause. Id., at 1183. It held that the reduction in prison privileges and housing accommodations was a penalty, both because of its substantial impact32Opinion of KENNEDY, J.on the inmate and because that impact was identical to the punishment imposed by the Department for serious disciplinary infractions. In the Court of Appeals' view, the fact that the sanction was automatic, rather than conditional, supported the conclusion that it constituted compulsion. Moreover, because all SATP files are subject to disclosure by subpoena, and an admission of culpability regarding the crime of conviction would create a risk of a perjury prosecution, the court concluded that the information disclosed by respondent was sufficiently incriminating. Id., at 1180. The Court of Appeals recognized that the Kansas policy served the State's important interests in rehabilitating sex offenders and promoting public safety. It concluded, however, that those interests could be served without violating the Constitution, either by treating the admissions of the inmates as privileged communications or by granting inmates use immunity. Id., at 1192.We granted the warden's petition for certiorari because the Court of Appeals has held that an important Kansas prison regulation violates the Federal Constitution. 532 U. S. 1018 (2001).IISex offenders are a serious threat in this Nation. In 1995, an estimated 355,000 rapes and sexual assaults occurred nationwide. U. S. Dept. of Justice, Bureau of Justice Statistics, Sex Offenses and Offenders 1 (1997) (hereinafter Sex Offenses); U. S. Dept. of Justice, Federal Bureau of Investigation, Crime in the United States, 1999, Uniform Crime Reports 24 (2000). Between 1980 and 1994, the population of imprisoned sex offenders increased at a faster rate than for any other category of violent crime. See Sex Offenses 18. As in the present case, the victims of sexual assault are most often juveniles. In 1995, for instance, a majority of reported forcible sexual offenses were committed against persons under 18 years of age. University of New Hampshire, Crimes Against Children Research Center, Fact Sheet 5; Sex Offenses 24. Nearly 4 in 10 imprisoned violent33sex offenders said their victims were 12 or younger. Id., at iii.When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault. See id., at 27; U. S. Dept. of Justice, Bureau of Justice Statistics, Recidivism of Prisoners Released in 1983, p. 6 (1997). States thus have a vital interest in rehabilitating convicted sex offenders.Therapists and correctional officers widely agree that clinical rehabilitative programs can enable sex offenders to manage their impulses and in this way reduce recidivism. See U. S. Dept. of Justice, Nat. Institute of Corrections, A Practitioner's Guide to Treating the Incarcerated Male Sex Offender xiii (1988) ("[T]he rate of recidivism of treated sex offenders is fairly consistently estimated to be around 15%," whereas the rate of recidivism of untreated offenders has been estimated to be as high as 80%. "Even if both of these figures are exaggerated, there would still be a significant difference between treated and untreated individuals"). An important component of those rehabilitation programs requires participants to confront their past and accept responsibility for their misconduct. Id., at 73. "Denial is generally regarded as a main impediment to successful therapy," and "[t]herapists depend on offenders' truthful descriptions of events leading to past offences in order to determine which behaviours need to be targeted in therapy." H. Barbaree, Denial and Minimization Among Sex Offenders:Assessment and Treatment Outcome, 3 Forum on Corrections Research, No.4, p. 30 (1991). Research indicates that offenders who deny all allegations of sexual abuse are three times more likely to fail in treatment than those who admit even partial complicity. See B. Maletzky & K. McGovern, Treating the Sexual Offender 253-255 (1991).The critical first step in the Kansas SATP, therefore, is acceptance of responsibility for past offenses. This gives inmates a basis to understand why they are being punished34Opinion of KENNEDY, J.and to identify the traits that cause such a frightening and high risk of recidivism. As part of this first step, Kansas requires each SATP participant to complete an "Admission of Responsibility" form, to fill out a sexual history form discussing their offending behavior, and to discuss their past behavior in individual and group counseling sessions.The District Court found that the Kansas SATP is a valid "clinical rehabilitative program," supported by a "legitimate penological objective" in rehabilitation. 24 F. Supp. 2d, at 1163. The SATP lasts for 18 months and involves substantial daily counseling. It helps inmates address sexual addiction; understand the thoughts, feelings, and behavior dynamics that precede their offenses; and develop relapse prevention skills. Although inmates are assured of a significant level of confidentiality, Kansas does not offer legal immunity from prosecution based on any statements made in the course of the SATP. According to Kansas, however, no inmate has ever been charged or prosecuted for any offense based on information disclosed during treatment. Brief for Petitioners 4-5. There is no contention, then, that the program is a mere subterfuge for the conduct of a criminal investigation.As the parties explain, Kansas' decision not to offer immunity to every SATP participant serves two legitimate state interests. First, the professionals who design and conduct the program have concluded that for SATP participants to accept full responsibility for their past actions, they must accept the proposition that those actions carry consequences. Tr. of Oral Arg. 11. Although no program participant has ever been prosecuted or penalized based on information revealed during the SATP, the potential for additional punishment reinforces the gravity of the participants' offenses and thereby aids in their rehabilitation. If inmates know society will not punish them for their past offenses, they may be left with the false impression that society does not consider those crimes to be serious ones. The practical effect of guaran-35teed immunity for SATP participants would be to absolve many sex offenders of any and all cost for their earlier crimes. This is the precise opposite of the rehabilitative objective.Second, while Kansas as a rule does not prosecute inmates based upon information revealed in the course of the program, the State confirms its valid interest in deterrence by keeping open the option to prosecute a particularly dangerous sex offender. Brief for 18 States as Amici Curiae 11. Kansas is not alone in declining to offer blanket use immunity as a condition of participation in a treatment program. The Federal Bureau of Prisons and other States conduct similar sex offender programs and do not offer immunity to the participants. See, e. g., Ainsworth v. Risley, 244 F.3d 209, 214 (CA1 2001) (describing New Hampshire's program).The mere fact that Kansas declines to grant inmates use immunity does not render the SATP invalid. Asking at the outset whether prison administrators can or should offer immunity skips the constitutional inquiry altogether. If the State of Kansas offered immunity, the self-incrimination privilege would not be implicated. See, e. g., Kastigar v. United States, 406 U. S. 441, 453 (1972); Brown v. Walker, 161 U. S. 591, 610 (1896). The State, however, does not offer immunity. So the central question becomes whether the State's program, and the consequences for nonparticipation in it, combine to create a compulsion that encumbers the constitutional right. If there is compulsion, the State cannot continue the program in its present form; and the alternatives, as will be discussed, defeat the program's objectives.The SATP does not compel prisoners to incriminate themselves in violation of the Constitution. The Fifth Amendment Self-Incrimination Clause, which applies to the States via the Fourteenth Amendment, Malloy v. Hogan, 378 U. S. 1 (1964), provides that no person "shall be compelled in any criminal case to be a witness against himself." The "Amendment speaks of compulsion," United States v. Monia,36Opinion of KENNEDY, J.317 U. S. 424, 427 (1943), and the Court has insisted that the "constitutional guarantee is only that the witness not be compelled to give self-incriminating testimony." United States v. Washington, 431 U. S. 181, 188 (1977). The consequences in question here-a transfer to another prison where television sets are not placed in each inmate's cell, where exercise facilities are not readily available, and where work and wage opportunities are more limited-are not ones that compel a prisoner to speak about his past crimes despite a desire to remain silent. The fact that these consequences are imposed on prisoners, rather than ordinary citizens, moreover, is important in weighing respondent's constitutional claim.The privilege against self-incrimination does not terminate at the jailhouse door, but the fact of a valid conviction and the ensuing restrictions on liberty are essential to the Fifth Amendment analysis. Sandin v. Conner, 515 U. S. 472, 485 (1995) ("[L]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system" (citation and internal quotation marks omitted)). A broad range of choices that might infringe constitutional rights in a free society fall within the expected conditions of confinement of those who have suffered a lawful conviction.The Court has instructed that rehabilitation is a legitimate penological interest that must be weighed against the exercise of an inmate's liberty. See, e. g., O'Lone v. Estate of Shabazz, 482 U. S. 342, 348, 351 (1987). Since "most offenders will eventually return to society, [a] paramount objective of the corrections system is the rehabilitation of those committed to its custody." Pell v. Procunier, 417 U. S. 817, 823 (1974). Acceptance of responsibility in turn demonstrates that an offender "is ready and willing to admit his crime and to enter the correctional system in a frame of mind that affords hope for success in rehabilitation over a shorter period37of time than might otherwise be necessary." Brady v. United States, 397 U. S. 742, 753 (1970).The limitation on prisoners' privileges and rights also follows from the need to grant necessary authority and capacity to federal and state officials to administer the prisons. See, e. g., Turner v. Safley, 482 U. S. 78 (1987). "Running a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government." Id., at 84-85. To respect these imperatives, courts must exercise restraint in supervising the minutiae of prison life. Ibid. Where, as here, a state penal system is involved, federal courts have "additional reason to accord deference to the appropriate prison authorities." Ibid.For these reasons, the Court in Sandin held that challenged prison conditions cannot give rise to a due process violation unless those conditions constitute "atypical and significant hardship[s] on [inmates] in relation to the ordinary incidents of prison life." See 515 U. S., at 484. The determination under Sandin whether a prisoner's liberty interest has been curtailed may not provide a precise parallel for determining whether there is compelled self-incrimination, but it does provide useful instruction for answering the latter inquiry. Sandin and its counterparts underscore the axiom that a convicted felon's life in prison differs from that of an ordinary citizen. In the context of a legitimate rehabilitation program for prisoners, those same considerations are relevant to our analysis. The compulsion inquiry must consider the significant restraints already inherent in prison life and the State's own vital interests in rehabilitation goals and procedures within the prison system. A prison clinical rehabilitation program, which is acknowledged to bear a rational relation to a legitimate penological objective, does not violate the privilege against self-incrimination if the adverse38Opinion of KENNEDY, J.consequences an inmate faces for not participating are related to the program objectives and do not constitute atypical and significant hardships in relation to the ordinary incidents of prison life.Along these lines, this Court has recognized that lawful conviction and incarceration necessarily place limitations on the exercise of a defendant's privilege against selfincrimination. See, e. g., Baxter v. Palmigiano, 425 U. S. 308 (1976). Baxter declined to extend to prison disciplinary proceedings the rule of Griffin v. California, 380 U. S. 609 (1965), that the prosecution may not comment on a defendant's silence at trial. 425 U. S., at 319-320. As the Court explained, "[d]isciplinary proceedings in state prisons ... involve the correctional process and important state interests other than conviction for crime." Id., at 319. The inmate in Baxter no doubt felt compelled to speak in one sense of the word. The Court, considering the level of compulsion in light of the prison setting and the State's interests in rehabilitation and orderly administration, nevertheless rejected the inmate's self-incrimination claim.In the present case, respondent's decision not to participate in the Kansas SATP did not extend his term of incarceration. Nor did his decision affect his eligibility for goodtime credits or parole. 224 F. 3d, at 1182. Respondent instead complains that if he remains silent about his past crimes, he will be transferred from the medium-security unit-where the program is conducted-to a less desirable maximum-security unit.No one contends, however, that the transfer is intended to punish prisoners for exercising their Fifth Amendment rights. Rather, the limitation on these rights is incidental to Kansas' legitimate penological reason for the transfer:Due to limited space, inmates who do not participate in their respective programs will be moved out of the facility where the programs are held to make room for other inmates. As the Secretary of Corrections has explained, "it makes no39sense to have someone who's not participating in a program taking up a bed in a setting where someone else who may be willing to participate in a program could occupy that bed and participate in a program." App.99.It is well settled that the decision where to house inmates is at the core of prison administrators' expertise. See Meachum v. Fano, 427 U. S. 215, 225 (1976). For this reason the Court has not required administrators to conduct a hearing before transferring a prisoner to a bed in a different prison, even if "life in one prison is much more disagreeable than in another." Ibid. The Court has considered the proposition that a prisoner in a more comfortable facility might begin to feel entitled to remain there throughout his term of incarceration. The Court has concluded, nevertheless, that this expectation "is too ephemeral and insubstantial to trigger procedural due process protections as long as prison officials have discretion to transfer him for whatever reason or for no reason at all." Id., at 228. This logic has equal force in analyzing respodent's self-incrimination claim.Respondent also complains that he will be demoted from Level III to Level I status as a result of his decision not to participate. This demotion means the loss of his personal television; less access to prison organizations and the gym area; a reduction in certain pay opportunities and canteen privileges; and restricted visitation rights. App. 27-28. An essential tool of prison administration, however, is the authority to offer inmates various incentives to behave. The Constitution accords prison officials wide latitude to bestow or revoke these perquisites as they see fit. Accordingly, Hewitt v. Helms, 459 U. S. 460, 467, n. 4 (1983), held that an inmate's transfer to another facility did not in itself implicate a liberty interest, even though that transfer resulted in the loss of "access to vocational, educational, recreational, and rehabilitative programs." Respondent concedes that no liberty interest is implicated in this case. Tr. of Oral Arg. 45. To be sure, cases like Meachum and40Opinion of KENNEDY, J.Hewitt involved the Due Process Clause rather than the privilege against compelled self-incrimination. Those cases nevertheless underscore the axiom that, by virtue of their convictions, inmates must expect significant restrictions, inherent in prison life, on rights and privileges free citizens take for granted.Respondent fails to cite a single case from this Court holding that the denial of discrete prison privileges for refusal to participate in a rehabilitation program amounts to unconstitutional compulsion. Instead, relying on the so-called penalty cases, respondent treats the fact of his incarceration as if it were irrelevant. See, e. g., Garrity v. New Jersey, 385 U. S. 493 (1967); Spevack v. Klein, 385 U. S. 511 (1967). Those cases, however, involved free citizens given the choice between invoking the Fifth Amendment privilege and sustaining their economic livelihood. See, e. g., id., at 516 ("[T]hreat of disbarment and the loss of professional standing, professional reputation, and of livelihood are powerful forms of compulsion"). Those principles are not easily extended to the prison context, where inmates surrender upon incarceration their rights to pursue a livelihood and to contract freely with the State, as well as many other basic freedoms. The persons who asserted rights in Garrity and Spevack had not been convicted of a crime. It would come as a surprise if Spevack stands for the proposition that when a lawyer has been disbarred by reason of a final criminal conviction, the court or agency considering reinstatement of the right to practice law could not consider that the disbarred attorney has admitted his guilt and expressed contrition. Indeed, this consideration is often given dispositive weight by this Court itself on routine motions for reinstatement. The current case is more complex, of course, in that respondent is also required to discuss other criminal acts for which he might still be liable for prosecution. On this point, however, there is still a critical distinction between the instant case and Garrity or Spevack. Unlike those cases,41respondent here is asked to discuss other past crimes as part of a legitimate rehabilitative program conducted within prison walls.To reject out of hand these considerations would be to ignore the State's interests in offering rehabilitation programs and providing for the efficient administration of its prisons. There is no indication that the SATP is an elaborate attempt to avoid the protections offered by the privilege against compelled self-incrimination. Rather, the program serves an important social purpose. It would be bitter medicine to treat as irrelevant the State's legitimate interests and to invalidate the SATP on the ground that it incidentally burdens an inmate's right to remain silent.Determining what constitutes unconstitutional compulsion involves a question of judgment: Courts must decide whether the consequences of an inmate's choice to remain silent are closer to the physical torture against which the Constitution clearly protects or the de minimis harms against which it does not. The Sandin framework provides a reasonable means of assessing whether the response of prison administrators to correctional and rehabilitative necessities are so out of the ordinary that one could sensibly say they rise to the level of unconstitutional compulsion.Prison context or not, respondent's choice is marked less by compulsion than by choices the Court has held give no rise to a self-incrimination claim. 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. 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." McGautha v. California, 402 U. S. 183, 213 (1971) (citation and internal quotation marks omitted). It is well settled that the government need not make the exercise of the Fifth Amendment privilege cost free. See, e. g., Jenkins v. Anderson, 447 U. S. 231, 23842Opinion of KENNEDY, J.(1980) (a criminal defendant's exercise of his Fifth Amendment privilege prior to arrest may be used to impeach his credibility at trial); Williams v. Florida, 399 U. S. 78, 84-85 (1970) (a criminal defendant may be compelled to disclose the substance of an alibi defense prior to trial or be barred from asserting it).The cost to respondent of exercising his Fifth Amendment privilege-denial of certain perquisites that make his life in prison more tolerable-is much less than that borne by the defendant in Me Gautha. There, the Court upheld a procedure that allowed statements, which were made by a criminal defendant to mitigate his responsibility and avoid the death penalty, to be used against him as evidence of his guilt. 402 U. S., at 217. The Court likewise has held that plea bargaining does not violate the Fifth Amendment, even though criminal defendants may feel considerable pressure to admit guilt in order to obtain more lenient treatment. See, e. g., Bordenkircher v. Hayes, 434 U. S. 357 (1978); Brady, 397 U. S., at 751.Nor does reducing an inmate's prison wage and taking away personal television and gym access pose the same hard choice faced by the defendants in Baxter v. Palmigiano, 425 U. S. 308 (1976), Ohio Adult Parole Authority v. Woodard, 523 U. S. 272 (1998), and Minnesota v. Murphy, 465 U. S. 420 (1984). In Baxter, a state prisoner objected to the fact that his silence at a prison disciplinary hearing would be held against him. The Court acknowledged that Griffin v. California, 380 U. S. 609 (1965), held that the Fifth Amendment prohibits courts from instructing a criminal jury that it may draw an inference of guilt from a defendant's failure to testify. The Court nevertheless refused to extend the Griffin rule to the context of state prison disciplinary hearings because those proceedings "involve the correctional process and important state interests other than conviction for crime." 425 U. S., at 319. Whereas the inmate in the present case faces the loss of certain privileges, the prisoner in43Baxter faced 30 days in punitive segregation as well as the subsequent downgrade of his prison classification status. Id., at 313.In Murphy, the defendant feared the possibility of additional jail time as a result of his decision to remain silent. The defendant's probation officer knew the defendant had committed a rape and murder unrelated to his probation. One of the terms of the defendant's probation required him to be truthful with the probation officer in all matters. Seizing upon this, the officer interviewed the defendant about the rape and murder, and the defendant admitted his guilt. The Court found no Fifth Amendment violation, despite the defendant's fear of being returned to prison for 16 months if he remained silent. 465 U. S., at 422, 438.In Woodard, the plaintiff faced not loss of a personal television and gym access, but loss of life. In a unanimous opinion just four Terms ago, this Court held that a death row inmate could be made to choose between incriminating himself at his clemency interview and having adverse inferences drawn from his silence. The Court reasoned that it "is difficult to see how a voluntary interview could 'compel' respondent to speak. He merely faces a choice quite similar to the sorts of choices that a criminal defendant must make in the course of criminal proceedings, none of which has ever been held to violate the Fifth Amendment." 523 U. S., at 286. As here, the inmate in Woodard claimed to face a Hobson's choice: He would damage his case for clemency no matter whether he spoke and incriminated himself, or remained silent and the clemency board construed that silence against him. Unlike here, the Court nevertheless concluded that the pressure the inmate felt to speak to improve his chances of clemency did not constitute unconstitutional compulsion. Id., at 287-288.Woodard, Murphy, and Baxter illustrate that the consequences respondent faced here did not amount to unconstitutional compulsion. Respondent and the dissent attempt to distinguish Baxter, Murphy, and Woodard on the dual44Opinion of KENNEDY, J.grounds that (1) the penalty here followed automatically from respondent's decision to remain silent, and (2) respondent's participation in the SATP was involuntary. Neither distinction would justify departing from this Court's precedents, and the second is question begging in any event.It is proper to consider the nexus between remaining silent and the consequences that follow. Plea bargains are not deemed to be compelled in part because a defendant who pleads not guilty still must be convicted. Cf. Brady, supra, at 751-752. States may award good-time credits and early parole for inmates who accept responsibility because silence in these circumstances does not automatically mean the parole board, which considers other factors as well, will deny them parole. See Baxter, supra, at 317-318. While the automatic nature of the consequence may be a necessary condition to finding unconstitutional compulsion, however, that is not a sufficient reason alone to ignore Woodard, Murphy, and Baxter. Even if a consequence follows directly from a person's silence, one cannot answer the question whether the person has been compelled to incriminate himself without first considering the severity of the consequences.Nor can Woodard be distinguished on the alternative ground that respondent's choice to participate in the SATP was involuntary, whereas the death row inmate in Woodard chose to participate in clemency proceedings. This distinction assumes the answer to the compulsion inquiry. If respondent was not compelled to participate in the SATP, his participation was voluntary in the only sense necessary for our present inquiry. Kansas asks sex offenders to participate in SATP because, in light of the high rate of recidivism, it wants all, not just the few who volunteer, to receive treatment. Whether the inmates are being asked or ordered to participate depends entirely on the consequences of their decision not to do so. The parties in Woodard, Murphy, and Baxter all were faced with ramifications far worse than respondent faces here, and in each of those cases the Court45determined that their hard choice between silence and the consequences was not compelled. It is beyond doubt, of course, that respondent would prefer not to choose between losing prison privileges and accepting responsibility for his past crimes. It is a choice, nonetheless, that does not amount to compulsion, and therefore one Kansas may require respondent to make.The Federal Government has filed an amicus brief describing its sex offender treatment program. Were respondent's position to prevail, the constitutionality of the federal program would be cast into serious doubt. The fact that the offender in the federal program can choose to participate without being given a new prisoner classification is not determinative. For, as the Government explains, its program is conducted at a single, 112-bed facility that is more desirable than other federal prisons. Tr. of Oral Arg. 22. Inmates choose at the outset whether to enter the federal program. Once accepted, however, inmates must continue to discuss and accept responsibility for their crimes if they wish to maintain the status quo and remain in their more comfortable accommodations. Otherwise they will be expelled from the program and sent to a less desirable facility. Id., at 27. Thus the federal program is different from Kansas' SATP only in that it does not require inmates to sacrifice privileges besides housing as a consequence of nonparticipation. The federal program is comparable to the Kansas program because it does not offer participants use immunity and because it conditions a desirable housing assignment on inmates' willingness to accept responsibility for past behavior. Respondent's theory cannot be confined in any meaningful way, and state and federal courts applying that view would have no principled means to determine whether these similarities are sufficient to render the federal program unconstitutional.Respondent is mistaken as well to concentrate on the socalled reward/penalty distinction and the illusory baseline46Opinion of KENNEDY, J.against which a change in prison conditions must be measured. The answer to the question whether the government is extending a benefit or taking away a privilege rests entirely in the eye of the beholder. For this reason, emphasis of any baseline, while superficially appealing, would be an inartful addition to an already confused area of jurisprudence. The prison warden in this case stated that it is largely a matter of chance where in a prison an inmate is assigned. App. 59-63. Even if Inmates A and Bare serving the same sentence for the same crime, Inmate A could end up in a medium-security unit and Inmate B in a maximum-security unit based solely on administrative factors beyond their control. Under respondent's view, however, the Constitution allows the State to offer Inmate B the opportunity to live in the medium-security unit conditioned on his participation in the SATP, but does not allow the State to offer Inmate A the opportunity to live in that same medium-security unit subject to the same conditions. The consequences for Inmates A and B are identical: They may participate and live in medium security or refuse and live in maximum security. Respondent, however, would have us say the Constitution puts Inmate A in a superior position to Inmate B solely by the accident of the initial assignment to a medium-security unit.This reasoning is unsatisfactory. The Court has noted before that "[w]e doubt that a principled distinction may be drawn between 'enhancing' the punishment imposed upon the petitioner and denying him the 'leniency' he claims would be appropriate if he had cooperated." Roberts v. United States, 445 U. S. 552, 557, n. 4 (1980). Respondent's reasoning would provide States with perverse incentives to assign all inmates convicted of sex offenses to maximum security prisons until near the time of release, when the rehabilitation program starts. The rule would work to the detriment of the entire class of sex offenders who might not otherwise be placed in maximum-security facilities. And prison adminis-47trators would be forced, before making routine prison housing decisions, to identify each inmate's so-called baseline and determine whether an adverse effect, however marginal, will result from the administrative decision. The easy alternatives that respondent predicts for prison administrators would turn out to be not so trouble free.Respondent's analysis also would call into question the constitutionality of an accepted feature of federal criminal law: the downward adjustment for acceptance of criminal responsibility provided in § 3E1.1 of the United States Sentencing Commission, Guidelines Manual (Nov. 2002). If the Constitution does not permit the government to condition the use of a personal television on the acceptance of responsibility for past crimes, it is unclear how it could permit the government to reduce the length of a prisoner's term of incarceration based upon the same factor. By rejecting respondent's theory, we do not, in this case, call these policies into question.***Acceptance of responsibility is the beginning of rehabilitation. And a recognition that there are rewards for those who attempt to reform is a vital and necessary step toward completion. The Court of Appeals' ruling would defeat these objectives. If the State sought to comply with the ruling by allowing respondent to enter the program while still insisting on his innocence, there would be little incentive for other SATP participants to confess and accept counseling; indeed, there is support for Kansas' view that the dynamics of the group therapy would be impaired. If the State had to offer immunity, the practical effect would be that serial offenders who are incarcerated for but one violation would be given a windfall for past bad conduct, a result potentially destructive of any public or state support for the program and quite at odds with the dominant goal of acceptance of responsibility. If the State found it was forced to graduate prisoners from its rehabilitation program without knowing48O'CONNOR, J., concurring in judgmentwhat other offenses they may have committed, the integrity of its program would be very much in doubt. If the State found it had to comply by allowing respondent the same perquisites as those who accept counseling, the result would be a dramatic illustration that obduracy has the same rewards as acceptance, and so the program itself would become selfdefeating, even hypocritical, in the eyes of those whom it seeks to help. The Fifth Amendment does not require the State to suffer these programmatic disruptions when it seeks to rehabilitate those who are incarcerated for valid, final convictions.The Kansas SATP represents a sensible approach to reducing the serious danger that repeat sex offenders pose to many innocent persons, most often children. The State's interest in rehabilitation is undeniable. There is, furthermore, no indication that the SATP is merely an elaborate ruse to skirt the protections of the privilege against compelled self-incrimination. Rather, the program allows prison administrators to provide to those who need treatment the incentive to seek it.The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings.It is so ordered

OCTOBER TERM, 2001SyllabusMcKUNE, WARDEN, ET AL. v. LILECERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUITNo. 00-1187. Argued November 28, 2001-Decided June 10,2002Respondent was convicted of rape and related crimes. A few years before his scheduled release, Kansas prison officials ordered respondent to participate in a Sexual Abuse Treatment Program (SATP). As part of the program, participating inmates are required to complete and sign an "Admission of Responsibility" form, in which they accept responsibility for the crimes for which they have been sentenced, and complete a sexual history form detailing all prior sexual activities, regardless of whether the activities constitute uncharged criminal offenses. The information obtained from SATP participants is not privileged, and might be used against them in future criminal proceedings. There is no evidence, however, that incriminating information has ever been disclosed under the SATP. Officials informed respondent that if he refused to participate in the SATP, his prison privileges would be reduced, resulting in the automatic curtailment of his visitation rights, earnings, work opportunities, ability to send money to family, canteen expenditures, access to a personal television, and other privileges. He also would be transferred to a potentially more dangerous maximum-security unit. Respondent refused to participate in the SATP on the ground that the required disclosures of his criminal history would violate his Fifth Amendment privilege against compelled self-incrimination. He brought this action for injunctive relief under 42 U. S. C. § 1983. The District Court granted him summary judgment. Affirming, the Tenth Circuit held that the compelled self-incrimination prohibited by the Fifth Amendment can be established by penalties that do not constitute deprivations of protected liberty interests under the Due Process Clause; ruled that the automatic reduction in respondent's prison privileges and housing accommodations was such a penalty because of its substantial impact on him; declared that respondent's information would be sufficiently incriminating because an admission of culpability regarding his crime of conviction would create a risk of a perjury prosecution; and concluded that, although the SATP served Kansas' important interests in rehabilitating sex offenders and promoting public safety, those interests could be served without violating the Constitution by treating inmate admissions as privileged or by granting inmates use immunity.Held: The judgment is reversed, and the case is remanded. 224 F.3d 1175, reversed and remanded.25JUSTICE KENNEDY, joined by THE CHIEF JUSTICE, JUSTICE SCALIA, and JUSTICE THOMAS, concluded that the SATP serves a vital penological purpose, and that offering inmates minimal incentives to participate does not amount to compelled self-incrimination prohibited by the Fifth Amendment. Pp. 32-48.(a) The SATP is supported by the legitimate penological objective of rehabilitation. The SATP lasts 18 months; involves substantial daily counseling; and helps inmates address sexual addiction, understand the thoughts, feelings, and behavior dynamics that precede their offenses, and develop relapse prevention skills. Pp. 32-34.(b) The mere fact that Kansas does not offer legal immunity from prosecution based on statements made in the course of the SATP does not render the program invalid. No inmate has ever been charged or prosecuted for any offense based on such information, and there is no contention that the program is a mere subterfuge for the conduct of a criminal investigation. Rather, the refusal to offer use immunity serves two legitimate state interests: (1) The potential for additional punishment reinforces the gravity of the participants' offenses and thereby aids in their rehabilitation; and (2) the State confirms its valid interest in deterrence by keeping open the option to prosecute a particularly dangerous sex offender. Pp. 34-35.(c) The SATP, and the consequences for nonparticipation in it, do not combine to create a compulsion that encumbers the constitutional right not to incriminate oneself. Pp. 35-47.(1) The prison context is important in weighing respondent's constitutional claim: A broad range of choices that might infringe constitutional rights in a free society fall within the expected conditions of confinement of those lawfully convicted. The limitation on prisoners' privileges and rights also follows from the need to grant necessary authority and capacity to officials to administer the prisons. See, e. g., Turner v. Safley, 482 U. S. 78. The Court's holding in Sandin v. Conner, 515 U. S. 472,484, that challenged prison conditions cannot give rise to a due process violation unless they constitute "atypical and significant hardship[s] on [inmates] in relation to the ordinary incidents of prison life," may not provide a precise parallel for determining whether there is compelled self-incrimination, but does provide useful instruction. A prison clinical rehabilitation program, which is acknowledged to bear a rational relation to a legitimate penological objective, does not violate the privilege against compelled self-incrimination if the adverse consequences an inmate faces for not participating are related to the program objectives and do not constitute atypical and significant hardships in relation to the ordinary incidents of prison life. Cf., e. g., Baxter v. Palmigiano, 425 U. S. 308, 319-320. Pp. 35-38.26Full Text of Opinion

1964_54

MR. JUSTICE HARLAN delivered the opinion of the Court.In March, 1963, the Internal Revenue Service, pursuant to powers afforded the Commissioner by § 7602(2) of the Internal Revenue Code of 1954, summoned respondent Powell to appear before Special Agent Tiberino to give testimony and produce records relating to the 1958 and 1959 returns of the William Penn Laundry (the taxpayer), of which Powell was president. Powell appeared before the agent, but refused to produce the records. Because the taxpayer's returns had been once previously examined, and because the three-year statute of limitations barred assessment of additional deficiencies for those years [Footnote 1] except in cases of fraud (the asserted basis for this summons), [Footnote 2] Powell contended that, before he could be forced to produce the records, the Service had to indicate some grounds for its belief that a fraud had been committed. The agent declined to give any such indication, and the meeting terminated.Thereafter, the Service petitioned the District Court for the Eastern District of Pennsylvania for enforcement of the administrative summons. With this petition, the agent filed an affidavit stating that he had been investigating the taxpayer's returns for 1958 and 1959; that, based on this investigation, the Regional Commissioner Page 379 U. S. 50 of the Service had determined an additional examination of the taxpayer's records for those years to be necessary, and had sent Powell a letter to that effect; and that the agent had reason to suspect that the taxpayer had fraudulently falsified its 1958 and 1959 returns by overstating expenses. At the court hearing, Powell again stated his objections to producing the records, and asked the Service to show some basis for its suspicion of fraud. The Service chose to stand on the petition and the agent's affidavit, and, after argument, the District Court ruled that the agent be given one hour in which to reexamine the records. [Footnote 3]The Court of Appeals reversed, 325 F.2d 914. It reasoned that, since the returns in question could only be reopened for fraud, reexamination of the taxpayer's records must be barred by the prohibition of § 7605(b) of the Code [Footnote 4] against "unnecessary examination" unless the Service possessed information "which might cause a reasonable man to suspect that there has been fraud in the return for the otherwise closed year," [Footnote 5] and whether this standard has been met is to be decided "on the basis of the showing made in the normal course of an adversary proceeding. . . ." [Footnote 6] The court concluded that the affidavit in itself was not sufficient to satisfy its test of probable cause. [Footnote 7] Consequently, enforcement of the summons was withheld.Because of the differing views in the circuits on the standards the Internal Revenue Service must meet to Page 379 U. S. 51 obtain judicial enforcement of its orders, [Footnote 8] we granted certiorari, 377 U.S. 929.We reverse, and hold that the Government need make no showing of probable cause to suspect fraud unless the taxpayer raises a substantial question that judicial enforcement of the administrative summons would be an abusive use of the court's process, predicated on more than the fact of reexamination and the running of the statute of limitations on ordinary tax liability.IThis enforcement proceeding was brought by the Government pursuant to s 7604(b) of the Code. [Footnote 9] In Reisman v. Caplin, 375 U. S. 440, decided last Term subsequent to the rendering of the decision below, this Court Page 379 U. S. 52 stated that § 7604(b) "was intended only to cover persons who were summoned and wholly made default or contumaciously refused to comply." 375 U.S. at 375 U. S. 448. There was no contumacious refusal in this case. Thus, the Government's conceded error in bringing its enforcement proceeding under § 7604(b), instead of § 7402(b) or § 7604(a), [Footnote 10] each of which grants courts the general power to enforce the Commissioner's summonses "by appropriate process," raises a threshold question whether we must dismiss this case and force the Government to recommence enforcement proceedings under the appropriate sections. Since the Government did not apply for the prehearing sanctions of attachment and arrest peculiar to § 7604(b), and since these constitute the major substantive differences between the sections, we think it would be holding too strictly to the forms of pleading to require the suit to be recommenced, and therefore treat the enforcement proceeding as having been brought under §§ 7402(b) and 7604(a).IIRespondent primarily relies on § 7605(b) to show that the Government must establish probable cause for suspecting fraud, and that the existence of probable cause is subject to challenge by the taxpayer at the hearing. [Footnote 11] That section provides:"No taxpayer shall be subjected to unnecessary examination or investigations, and only one inspection Page 379 U. S. 53 of a taxpayer's books of account shall be made for each taxable year unless the taxpayer requests otherwise or unless the Secretary or his delegate, after investigation, notifies the taxpayer in writing that an additional inspection is necessary."We do not equate necessity as contemplated by this provision with probable cause or any like notion. If a taxpayer has filed fraudulent returns, a tax liability exists without regard to any period of limitations. Section 7602 authorizes the Commissioner to investigate any such liability. [Footnote 12] If, in order to determine the existence or nonexistence of fraud in the taxpayer's returns, information in the taxpayer's records is needed which is not already in the Commissioner's possession, we think the examination is not "unnecessary" within the meaning of § 7605(b). Although a more stringent interpretation is possible, one which would require some showing of cause for suspecting fraud, we reject such an interpretation Page 379 U. S. 54 because it might seriously hamper the Commissioner in carrying out investigations he thinks warranted, forcing him to litigate and prosecute appeals on the very subject which he desires to investigate, and because the legislative history of § 7605(b) indicates that no severe restriction was intended.Section 7605(b) first appeared as § 1309 of the Revenue Act of 1921, 42 Stat. 310. Its purpose and operation were explained by the manager of the bill, Senator Penrose, on the Senate floor:"Mr. PENROSE. Mr. President, the provision is entirely in the interest of the taxpayer and for his relief from unnecessary annoyance. Since these income taxes and direct taxes have been in force, very general complaint has been made, especially in the large centers of wealth and accumulation of money at the repeated visits of tax examiners, who perhaps are overzealous or do not use the best of judgment in the exercise of their functions. I know that, from many of the cities of the country, very bitter complaints have reached me and have reached the department of unnecessary visits and inquisitions after a thorough examination is supposed to have been had. This section is purely in the interest of quieting all this trouble, and in the interest of the peace of mind of the honest taxpayer.""Mr. WALSH. . . . So that, up to the present time, an inspector could visit the office of an individual or corporation and inspect the books as many times as he chose?""Mr. PENROSE. And he often did so.""Mr. WALSH. . . . And this provision of the Senate committee seeks to limit the inspection to one visit unless the commissioner indicates that there is necessity for further examination?""Mr. PENROSE. That is the purpose of the amendment. "Page 379 U. S. 55"Mr. WALSH. . . . I heartily agree with the beneficial results that the amendment will produce to the taxpayer.""Mr. PENROSE. I knew the Senator would agree to the amendment, and it will go a long way toward relieving petty annoyances on the part of honest taxpayers."61 Cong.Rec. 5855 (Sept. 28, 1921). [Footnote 13]Congress recognized a need for a curb on the investigating powers of low echelon revenue agents, and considered Page 379 U. S. 56 that it met this need simply and fully by requiring such agents to clear any repetitive examination with a superior. For us to import a probable cause standard to be enforced by the courts would substantially overshoot the goal which the legislators sought to attain. There is no intimation in the legislative history that Congress intended the courts to oversee the Commissioner's determinations to investigate. No mention was made of the statute of limitations [Footnote 14] and the exception for fraud.We are asked to read § 7605(b) together with the limitations sections in such a way as to impose a probable cause standard upon the Commissioner from the expiration date of the ordinary limitations period forward. Without some solid indication in the legislative history that such a gloss was intended, we find it unacceptable. [Footnote 15] Our reading of the statute is said to render the first clause of § 7605(b) surplusage to a large extent, for, as interpreted, the clause adds little beyond the relevance and materiality requirements of § 7602. That clause does appear to require that the information sought is not already within the Commissioner's possession, but we think its primary purpose was no more than to emphasize the responsibility of agents to exercise prudent judgment in wielding the extensive powers granted to them by the Internal Revenue Code. [Footnote 16] Page 379 U. S. 57This view of the statute is reinforced by the general rejection of probable cause requirements in like circumstances involving other agencies. In Oklahoma Press Pub. Co. v. Walling, 327 U. S. 186, 327 U. S. 216, in reference to the Administrator's subpoena power under the Fair Labor Standards Act, the Court said"his investigative function, in searching out violations with a view to securing enforcement of the Act, is essentially the same as the grand jury's, or the court's in issuing other pretrial orders for the discovery of evidence, and is governed by the same limitations,"and accordingly applied the view that inquiry must not be "limited . . . by . . . forecasts of the probable result of the investigation." In United States v. Morton Salt Co., 338 U. S. 632, 338 U. S. 642-643, the Court said of the Federal Trade Commission,"It has a power of inquisition, if one chooses to call it that, which is not derived from the judicial function. It is more analogous to the Grand Jury, which does not depend on a case or controversy for power to get evidence, but can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not."While the power of the Commissioner of Internal Revenue derives from a different body of statutes, we do not think the analogies to other agency situations are without force when the scope of the Commissioner's power is called in question. [Footnote 17]IIIReading the statutes as we do, the Commissioner need not meet any standard of probable cause to obtain enforcement of his summons, either before or after the three-year statute of limitations on ordinary tax liabilities has expired. He must show that the investigation will be conducted pursuant to a legitimate purpose, that the inquiry may be relevant to the purpose, that the Page 379 U. S. 58 information sought is not already within the Commissioner's possession, and that the administrative steps required by the Code have been followed -- in particular, that the "Secretary or his delegate," after investigation, has determined the further examination to be necessary and has notified the taxpayer in writing to that effect. This does not make meaningless the adversary hearing to which the taxpayer is entitled before enforcement is ordered. [Footnote 18] At the hearing, he "may challenge the summons on any appropriate ground," Reisman v. Caplin, 375 U. S. 440 at 375 U. S. 449. [Footnote 19] Nor does our reading of the statutes mean that under no circumstances may the court inquire into the underlying reasons for the examination. It is the court's process which is invoked to enforce the administrative summons, and a court may not permit its process to be abused. [Footnote 20] Such an abuse would take place if the summons had been issued for an improper purpose, such as to harass the taxpayer or to put pressure on him to settle a collateral dispute, or for any other purpose reflecting on the good faith of the particular investigation. The burden of showing an abuse of the court's process is on the taxpayer, and it is not met by a mere showing, as was made in this case, that the statute of limitations for ordinary deficiencies has run or that the records in question have already been once examined. Page 379 U. S. 59The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtUnited States v. Powell, 379 U.S. 48 (1964)United States v. PowellNo. 54Argued October 14-15, 1964Decided November 23, 1964379 U.S. 48SyllabusOn the ground that the respondent corporate taxpayer's returns had been examined for certain years and that, absent fraud, the statute of limitations barred assessment of additional deficiencies, respondent the taxpayer's president refused to produce records summoned by the Internal Revenue Service (IRS) unless it disclosed its basis for believing that fraud had been committed. The Government brought an enforcement proceeding under § 7604(b) of the Internal Revenue Code in the District Court, which held that the agent be allowed to reexamine the records. The Court of Appeals reversed, holding that § 7605 (b) barred "unnecessary examination" unless the IRS could show reasonable grounds or probable cause to suspect fraud, a condition not satisfied by the agent's affidavit filed with the enforcement petition that he suspected that the taxpayer had fraudulently overstated expenses.Held:1. Section 7604(b) does not apply to a non-contumacious refusal like the individual respondent's to comply with a summons; but recommencement of the proceeding will not be required, since the Government sought no prehearing sanctions of arrest and attachment under that statute, which is otherwise similar to §§ 7402(b) and 7604(a). The proceeding is therefore considered under those almost identical sections, which give general power to enforce summonses "by appropriate process." Pp. 379 U. S. 51-52.2. In order to enforce a summons for records, the Commissioner, either before or after the limitations period has expired, need not show probable cause to suspect fraud. Unless the taxpayer raises a substantial question that judicial enforcement of the summons would abuse the court's process, the Commissioner must only show that the investigation is pursuant and relevant to a legitimate purpose; that the information is not already in the Commissioner's possession; that the Secretary or his delegate has determined that the further examination is necessary, and that the other administrative steps required by the Code have been followed. Pp. 379 U. S. 52-58.325 F.2d 914, reversed and remanded. Page 379 U. S. 49

1956_260

MR. JUSTICE BURTON delivered the opinion of the Court.The issue in this case is whether the custodian of a union's books and records may, on the ground of his Fifth Amendment privilege against self-incrimination, refuse to Page 354 U. S. 119 answer questions asked by a federal grand jury as to the whereabouts of such books and records which he has not produced pursuant to subpoena. For the reasons hereafter stated, we hold that the privilege against self-incrimination attaches to such questions.In April, 1956, a special grand jury in the United States District Court for the Southern District of New York was investigating racketeering in the garment and trucking industries in New York City. This investigation followed widespread charges of racketeering in labor unions, including specific charges that seven local unions had been recently chartered by a faction of the International Brotherhood of Teamsters to gain control of the Teamsters' New York Joint Council, and that these "phantom unions" were controlled by a group of gangsters, ex-convicts, and labor racketeers.Petitioner, Joseph Curcio, the secretary-treasurer of Local 269 of the International Brotherhood of Teamsters, one of the alleged "phantom unions," was subpoenaed to appear before the grand jury, and to produce the union's books and records. There were two subpoenas -- a personal subpoena ad testificandum and a subpoena duces tecum addressed to him in his capacity as secretary-treasurer of Local 269. On several days, he appeared before the grand jury but failed to produce the demanded books and records. He testified that he was the secretary-treasurer of Local 269; that the union had books and records; but that they were not then in his possession. He refused, on the ground of self-incrimination, to answer any questions pertaining to the whereabouts, or who had possession, of the books and records he had been ordered to produce.The District Court, after a hearing in which petitioner attempted to justify his claim of privilege, directed petitioner to answer 15 questions pertaining to the whereabouts Page 354 U. S. 120 of the books and records. [Footnote 1] It ruled that petitioner's claim of privilege was improper because he had not made a sufficient showing that his answers might Page 354 U. S. 121 incriminate him. When petitioner persisted in his refusal to answer, the District Court summarily adjudged him guilty of criminal contempt, and sentenced him to six months' confinement unless he sooner purged himself by answering the questions. This conviction related solely to petitioner's failure to answer questions asked pursuant to the personal subpoena ad testificandum. He has not been charged with failing to produce the books and records demanded in the subpoena duces tecum.The Court of Appeals affirmed the conviction. 234 F.2d 470. It held that petitioner had failed to show that his answers to the 15 questions might incriminate him; that the privilege against self-incrimination did not attach to questions put to a custodian relating to the whereabouts of union books; and that petitioner had been accorded a fair hearing. We granted certiorari to determine whether petitioner's claim of privilege was properly denied. 352 U.S. 820.In the courts below, the Government contended that petitioner had not made a sufficient showing that answering the 15 questions might tend to incriminate him. The Government no longer so contends. In its brief, it now says,"We make no claim that, if petitioner's personal privilege did apply to questions concerning the union records, he failed to make an adequate showing of possible incrimination."There is substantial ground for the Government's concession. [Footnote 2] Page 354 U. S. 122We turn, therefore, to the remaining issue -- whether petitioner's personal privilege against self-incrimination attaches to questions relating to the whereabouts of the union books and records which he did not produce pursuant to subpoena.It is settled that a corporation is not protected by the constitutional privilege against self-incrimination. A corporate officer may not withhold testimony or documents on the ground that his corporation would be incriminated. Hale v. Henkel, 201 U. S. 43. Nor may the custodian of corporate books or records withhold them on the ground that he personally might be incriminated by their production. Wilson v. United States, 221 U. S. 361; Essgee Co. v. United States, 262 U. S. 151. Even after the dissolution of a corporation and the transfer of its books to individual stockholders, the transferees may not invoke their privilege with respect to the former corporate records. Grant v. United States, 227 U. S. 74; Wheeler v. United States, 226 U. S. 478. The foregoing cases stand for the principle that the books and records of corporations cannot be insulated from reasonable demands of governmental authorities by a claim of personal privilege on the part of their custodian.In United States v. White, 322 U. S. 694, this principle was applied to an unincorporated association, a labor union. Stating that the privilege against self-incrimination had the historic function of "protecting only the natural individual from compulsory incrimination through his own testimony or personal records" (id. at 322 U. S. 701), the Court held that"the papers and effects which Page 354 U. S. 123 the privilege protects must be the private property of the person claiming the privilege, or at least in his possession in a purely personal capacity"(id. at 322 U. S. 699)."But individuals, when acting as representatives of a collective group, cannot be said to be exercising their personal rights and duties nor to be entitled to their purely personal privileges. Rather, they assume the rights, duties, and privileges of the artificial entity or association of which they are agents or officers and they are bound by its obligations. In their official capacity, therefore, they have no privilege against self-incrimination. And the official records and documents of the organization that are held by them in a representative, rather than in a personal, capacity cannot be the subject of the personal privilege against self-incrimination, even though production of the papers might tend to incriminate them personally."Id. at 322 U. S. 699.The Government now contends that the representative duty which required the production of union records in the White case requires the giving of oral testimony by the custodian in this case. From the fact that the custodian has no privilege with respect to the union books in his possession, the Government reasons that he also has no privilege with respect to questions seeking to ascertain the whereabouts of books and records which have been subpoenaed but not produced. In other words, when the custodian fails to produce the books, he must, according to the Government, explain or account under oath for their nonproduction, even though to do so may tend to incriminate him.The Fifth Amendment suggests no such exception. It guarantees that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself. . . ." A custodian, by assuming the duties of his office, undertakes Page 354 U. S. 124 the obligation to produce the books of which he is custodian in response to a rightful exercise of the State's visitorial powers. But he cannot lawfully be compelled, in the absence of a grant of adequate immunity from prosecution, to condemn himself by his own oral testimony.In the Wilson case, supra, which is the leading case for the proposition that corporate officers may not invoke their personal privilege against self-incrimination to prevent the production of corporate records, Mr. Justice Hughes, speaking for the Court, drew the distinction sharply. He said,"They [the custodians of corporate records] may decline to utter upon the witness stand a single self-criminating word. They may demand that any accusation against them individually be established without the aid of their oral testimony or the compulsory production by them of their private papers."221 U.S. at 221 U. S. 385. In the White case, supra, the Court was careful to point out that "[t]he subpoena duces tecum was directed to the union and demanded the production only of its official documents and records" (322 U.S. at 322 U. S. 704), that "[h]e (White, the custodian of the union's records) had not been subpoenaed personally to testify" (id. at 322 U. S. 695-696), and that "there was no effort or indicated intention to examine him personally as a witness" (id. at 322 U. S. 696). And, in Shapiro v. United States, 335 U. S. 1, 335 U. S. 27, holding that the privilege against self-incrimination did not apply to records required to be kept by food licensees under wartime OPA regulations, the Court said, "Of course all oral testimony by individuals can properly be compelled only by exchange of immunity for waiver of privilege." There is no hint in these decisions that a custodian of corporate or association books waives his constitutional privilege as to oral testimony by assuming the duties of his office. By accepting custodianship of records he "has voluntarily assumed a duty which overrides his claim of Page 354 U. S. 125 privilege" only with respect to the production of the records themselves. Wilson v. United States, 221 U. S. 361, 221 U. S. 380.United States v. Austin-Bagley Corp., 31 F.2d 229, and cases following it [Footnote 3] are relied upon by the Government. Those cases, holding that a corporate officer who has been required by subpoena to produce corporate documents may also be required, by oral testimony, to identify them, are distinguishable and we need not pass on their validity. The custodian's act of producing books or records in response to a subpoena duces tecum is itself a representation that the documents produced are those demanded by the subpoena. Requiring the custodian to identify or authenticate the documents for admission in evidence merely makes explicit what is implicit in the production itself. The custodian is subjected to little, if any, further danger of incrimination. However, in the instant case, the Government is seeking to compel the custodian to do more than identify documents already produced. It seeks to compel him to disclose, by his oral testimony, the whereabouts of books and records which he has failed to produce. It even seeks to make the custodian name the persons in whose possession the missing books may be found. Answers to such questions are more than "auxiliary to the production" of unprivileged corporate or association records. [Footnote 4] Page 354 U. S. 126The Government cites but one federal case, United States v. Field, 193 F.2d 92, as directly supporting its position. [Footnote 5] In that case, the trustees of a bail fund were held in contempt for failure to produce records of the fund pursuant to a subpoena. After affirming the convictions on that ground, the Court of Appeals for the Second Circuit went on to consider, by way of dictum, other contentions raised by the trustees. One of their contentions was that questions about the location and production of records were improper. The court, relying on several cases in which a custodian was compelled to identify records which he had already produced, said that the questions pertaining to the location of the records "were Page 354 U. S. 127 proper under the precedents." Id. at 97. The cases cited, however, do not support the court's dictum. [Footnote 6]The Government suggests that subpoenaed corporate and association records will be obtained more readily for law enforcement purposes if their custodian is threatened with summary commitment for contempt in failing to testify as to their whereabouts, rather than with prosecution for disobedience of the subpoena to produce the records themselves. We need not concern ourselves with the relative efficacy of those procedures. [Footnote 7] There is a great Page 354 U. S. 128 difference between them. The compulsory production of corporate or association records by their custodian is readily justifiable, even though the custodian protests against it for personal reasons, because he does not own the records and has no legally cognizable interest in them. However, forcing the custodian to testify orally as to the whereabouts of nonproduced records requires him to disclose the contents of his own mind. He might be compelled to convict himself out of his own mouth. That is contrary to the spirit and letter of the Fifth Amendment.Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded to the District Court with instructions to enter a judgment of acquittal.Reversed

U.S. Supreme CourtCurcio v. United States, 354 U.S. 118 (1957)Curcio v. United StatesNo. 260Argued March 28, 1957Decided June 10, 1957354 U.S. 118SyllabusIn the circumstances of this case, the custodian of a union's books and records, who had failed to produce them before a federal grand jury pursuant to subpoena, could, on the ground of his privilege against self-incrimination under the Fifth Amendment, lawfully refuse to answer questions asked by the grand jury as to the whereabouts of such books and records, and his conviction of criminal contempt for refusing to answer such questions is reversed. Pp. 354 U. S. 118-128.(a) Though the custodian of the books and records of a corporation or a labor union may not, on grounds of possible self-incrimination, refuse to produce them pursuant to subpoena, he cannot lawfully be compelled, in the absence of a grant of adequate immunity from prosecution, to condemn himself by his own oral testimony. Pp. 354 U. S. 122-128.(b) In the circumstances of this case, the questions which petitioner refused to answer were incriminating. P. 121, n 2.234 F.2d 470 reversed and remanded.

1956_4

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.In this case, we are called upon again to interpret § 8(d) of the National Labor Relations Act, as amended. [Footnote 1] Page 352 U. S. 284 See Mastro Plastics Corp. v. Labor Board, 350 U. S. 270. In particular, we are concerned with § 8(d)(4), which provides that a party who wishes to modify or terminate Page 352 U. S. 285 a collective bargaining contract must continue"in full force and effect, without resorting to strike or lockout, all the terms and conditions of the existing contract for a period of sixty days after . . . notice [of his wish to modify or terminate] is given or until the expiration date of such contract, whichever occurs later."Since § 8(d) defines the duty to bargain collectively, a violation of § 8(d)(4) constitutes a refusal to bargain, an unfair labor practice for employers, § 8(a)(5), and unions, § 8(b)(3). The last sentence of § 8(d) contains an additional sanction: an employee who strikes within the specified 60-day period loses his status as an employee for the purposes of §§ 8, 9 and 10 of the Act. The sole question presented by the petition for certiorari is:"Whether the requirement of this Section is satisfied where a contract provides for negotiation and adoption of modifications at an intermediate date during its term, and a strike in support of modification demands occurs after the date on which such modifications may become effective -- and after the 60-day notice period has elapsed -- but prior to the terminal date of the contract."We are told by the Solicitor General that the question is of major importance in the negotiation and administration of hundreds of collective bargaining agreements throughout the country; that there is a decided trend among unions and employers to execute contracts of longer duration than formerly, and to include provisions for reopening to negotiate changes during the contract term. [Footnote 2] Because of the importance of the question, we granted certiorari, 350 U.S. 986, to review a decision of the Court of Appeals for the Eighth Circuit to the effect that § 8(d)(4) bans strikes to obtain modifications of a Page 352 U. S. 286 contract until the contract by its terms or by the action of the parties has terminated.On October 23, 1950, respondent Lion Oil Co. and the Oil Workers International Union, CIO, entered into a contract which provided:"This agreement shall remain in full force and effect for the period beginning October 23, 1950, and ending October 23, 1951, and thereafter until canceled in the manner hereinafter in this Article provided.""This agreement may be canceled and terminated by the Company or the Union as of a date subsequent to October 23, 1951, by compliance with the following procedure:""(a) If either party to this agreement desires to amend the terms of this agreement, it shall notify the other party in writing of its desire to that effect, by registered mail. No such notice shall be given prior to August 24, 1951. Within the period of 60 days, immediately following the date of the receipt of said notice by the party to which notice is so delivered, the Company and the Union shall attempt to agree as to the desired amendments to this agreement.""(b) If an agreement with respect to amendment of this agreement has not been reached within the 60-day period mentioned in the subsection immediately preceding, either party may terminate this agreement thereafter upon not less than sixty day's written notice to the other. Any such notice of termination shall state the date upon which the termination of this agreement shall be effective."On August 24, 1951, the union served written notice on the company of its desire to modify the contract. [Footnote 3] Negotiations Page 352 U. S. 287 began on the contractual changes proposed by the union. The union members voted for a strike on February 14, 1952, but the strike, thrice postponed as negotiations continued, did not actually begin until April 30, 1952. The union never gave notice to terminate the contract as contemplated by the quoted contractual provision. Therefore, at all relevant times, a collective bargaining agreement was in effect. On August 3, a new contract was executed, and the strikers began to return to work the following day. Certain actions of the company during the strike were the basis of unfair labor practice charges by the union upon which a complaint issued.The Labor Board found that the company was guilty of unfair labor practices under § 8(a)(1), (3) and (5) of the Act. The company defended on the ground that the strike, because it occurred while the contract was in effect, was in violation of § 8(d)(4). A majority of the Board rejected this defense, holding that"The term 'expiration date' as used in section 8(d)(4) . . . has a twofold meaning; it connotes not only the terminal date of a bargaining contract, but also an agreed date in the course of its existence when the parties can effect changes in its provisions."The Board held that since, under the contract in dispute, October 23, 1951, was such an "agreed date," the notice given August 24 followed by a wait of more than 60 days satisfied the statute. The company was ordered to cease and desist and, affirmatively, to make whole employees found to have been discriminated against. 109 N.L.R.B. 680, 683.On the company's petition for review, the Court of Appeals set aside the Board's order. 221 F.2d 231. The court held that the "expiration date" of the contract was the date on which all rights and obligations under it would Page 352 U. S. 288 cease; that the second notice required to bring about this termination not having been given, the strike violated § 8(d)(4), and the strikers therefore lost their status as employees entitled to the protection of the Act. [Footnote 4]In Mastro Plastics Corp. v. Labor Board, supra, we had before us another provision of § 8(d). What we said there in ruling out a narrowly literal construction of the words of the statute is equally apropos here."If the above words are read in complete isolation from their context in the Act, such an interpretation is possible. However, '[i]n expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.' United States v. Boisdore 's Heirs, 8 How. 113, 49 U. S. 122."350 U.S. at 350 U. S. 285. Moreover, in Mastro Plastics, we cautioned against accepting a construction that "would produce incongruous results." Id. at 350 U. S. 286.That § 8(d)(4) is susceptible of various interpretation is apparent when § 8(d) is read as a whole. Its ambiguity was recognized by the Joint Committee of Congress created by the very act of which § 8(d) was a part to study the operation of the federal labor laws. [Footnote 5] Members of the National Labor Relations Board, the agency specially charged by Congress with effectuating the purposes of the national labor legislation, have expressed divergent views on the proper construction of § 8(d)(4); none of them has taken the position adopted Page 352 U. S. 289 by the court below. [Footnote 6] In the face of this ambiguity, it will not do simply to say Congress could have made itself clearer and automatically equate the phrase "expiration date" only with the date when a contract comes to an end.We find our guide to the general context of the statute in Mastro Plastics. In that case, we recognized a "dual purpose" in the Taft-Hartley Act -- to substitute collective bargaining for economic warfare and to protect the right of employees to engage in concerted activities for their own benefit. 350 U.S. at 350 U. S. 284. A construction which serves neither of these aims is to be avoided unless the words Congress has chosen clearly compel it. The restriction on employees' concerted activities which would result from the construction placed upon § 8(d)(4) by the Court of Appeals is obvious. [Footnote 7] Too, we think it would discourage the development of long-term bargaining relationships. Unions would be wary of entering into long-term contracts with machinery for reopening them for modification from time to time if they thought the right to strike would be denied them for the entire term of such a contract, though they imposed no such limitations on themselves.We do not believe that the language used by Congress requires any such result. Section 8(d)(1) provides that Page 352 U. S. 290 no party to an existing collective bargaining contract"shall terminate or modify such contract unless the party desiring such termination or modification -- (1) serves a written notice upon the other party to the contract of the proposed termination or modification sixty days prior to the expiration date thereof. . . ."The phrase "expiration date" is repeated in § 8(d)(1) and again in the "whichever occurs later" clause of § 8(d)(4) upon which this case turns. The use of the three words "termination," "modification" and "expiration" is significant. We conceive that a notice of desired modification would typically be served in advance of the date when the contract by its own terms was subject to modification. Notice of desired termination would ordinarily precede the date when the contract would come to an end by its terms or would be automatically renewed in the absence of notice to terminate. Therefore, we conclude that Congress meant by "expiration date" in § 8(d)(1) to encompass both situations, and the same phrase in § 8(d)(4) must carry the same meaning. "Expiration" has no such fixed and settled meaning as to make this an unduly strained reading.Our conclusion is buttressed by a provision of § 8(d) which was added by the Conference Committee. [Footnote 8]"[T]he duties . . . imposed [by subsections (2), (3) and (4)] shall not be construed as requiring either party to discuss or agree to any modification of the terms and conditions contained in a contract for a fixed period, if such modification is to become effective before such terms and conditions can be reopened under the provisions of the contract."The negative implication seems clear: Congress recognized a duty to bargain over modifications when the contract Page 352 U. S. 291 itself contemplates such bargaining. It would be anomalous for Congress to recognize such a duty and at the same time deprive the union of the strike threat which, together with "the occasional strike itself, is the force depended upon to facilitate arriving at satisfactory settlements." [Footnote 9]Although a 1948 committee report is no part of the legislative history of a statute enacted in 1947, we note that the Joint Committee on Labor-Management Relations, made up of members of the Congress which passed the Taft-Hartley Act, in its final report reached the same conclusion we do:"Reading section 8(d) as a whole seems to lead to the conclusion that the act permits a strike, after a 60-day notice, in the middle of a contract which authorizes a reopening on wages. Use of the words 'or modify' and 'or modification' in the proviso, and use of 'or modification' in section 8(d)(1), and the statement in the final paragraph of the section that the parties are not required to agree to any modification effective before the contract may be reopened under its terms, all seem to contemplate the right of either party to insist on changes in the contract if they have so provided. The right of the union would be an empty one without the right to strike after a 60-day notice. [Footnote 10] "Page 352 U. S. 292The contemporary legislative history manifests no real recognition of the problem before us. [Footnote 11] A reading of the committee reports and the floor debates alone could well lead to the conclusion that both the sponsors and the opponents of the bill saw in § 8(d)(4) no more than a means for preventing "quickie" strikes by requiring a "cooling-off" period which would not in any circumstances exceed 60 days. [Footnote 12] But the language used in the statute goes beyond this limited purpose. Significance must be given to the clause, "or until the expiration date of such contract, whichever occurs later." We believe our construction gives meaning to the congressional language which accords with the general purpose of the Act.Applying that construction to the facts of this case, we hold that the notice and waiting requirements of § 8(d) were fully satisfied. October 23, 1951, was the first date upon which the contract, by its terms, was subject to amendment. Notice of proposed amendments was served 60 days in advance. The strike did not occur until long afterward. The fact that, on October 23, the contract became terminable upon further notice by either party is immaterial. One thing the most authoritative legislative gloss on § 8(d), the report of the Senate Committee, makes clear is that the statutory notice Page 352 U. S. 293 requirement operates wholly independently of whatever notice requirement the parties have fixed for themselves. [Footnote 13] The situation here is not different, so far as the applicability of the statute is concerned, from that of a fixed-term contract with a clause providing for reopening at some specific time.Nor can we accept respondents' alternative contention that, even apart from § 8(d), the strike was in breach of contract and the strikers were for that reason not entitled to relief at the hand of the Board. Respondents rely upon Labor Board v. Sands Mfg. Co., 306 U. S. 332. In Sands, as in this case, the contract did not contain an express no-strike clause. Employees there refused in the course of the contract to continue work "in accordance with their contract." Id. at 306 U. S. 344. The refusal occurred midway in a fixed-term contract which did not provide for modifications during its term. This Court sustained the propriety of the employer's action in discharging the employees. Here, the strike occurred at a time when the parties were bargaining over modifications after notice and in accordance with the terms of the contract. Where there has been no express waiver of the right to strike, [Footnote 14] a waiver of the right during such a period is not to be inferred. We do not believe that the two-phase provision for terminating this contract means that it was not within the contemplation of the parties that Page 352 U. S. 294 economic weapons might be used to support demands for modification before the notice to terminate was given.The judgment below is reversed, and the case remanded for proceedings in conformity with this opinion.Reversed

U.S. Supreme CourtLabor Board v. Lion Oil Co., 352 U.S. 282 (1957)National Labor Relations Board v. Lion Oil Co.No. 4Argued October 8, 1956Decided January 22, 1957352 U.S. 282SyllabusSection 8(d)(4) of the National Labor Relations Act, as amended, provides that a party who desires to modify or terminate a collective bargaining contract must continue"in full force and effect, without resorting to strike or lock-out, all the terms and conditions of the existing contract for a period of sixty days after . . . notice is given or until the expiration date of such contract, whichever occurs later."Under a collective bargaining contract between an employer and a labor union, the earliest date upon which the contract was subject to amendment was October 23, 1951, and the contract became terminable after that date upon further notice by either party. The union gave notice of proposed amendments 60 days in advance of October 23, and a strike occurred long after that date, though without further notice of termination of the contract.Held:1. The notice and waiting requirements of § 8(d) were fully satisfied, the strike did not violate § 8(d)(4), and the strikers did not lose their status as employees entitled to the protection of the Act. Pp. 352 U. S. 283-294.(a) In expounding a statute, courts must not be guided by a single sentence or member of a sentence, but must look to the provisions of the whole law, and to its object and policy. P. 352 U. S. 288.(b) A construction of a statute that would produce incongruous results is to be avoided. P. 352 U. S. 288.(c) The substitution of collective bargaining for economic warfare, and the protection of the right of employees to engage in concerted activities for their own benefit, were dual purposes of the Taft-Hartley Act, and a construction which serves neither of these aims is to be avoided. Mastro Plastics Corp. v. Labor Board, 350 U. S. 270, 350 U. S. 284. P. 352 U. S. 289.(d) "Expiration date" in § 8(d)(1) of the Act relates to the date when a contract is subject to modification, as well as the date when it would come to an end, and the same phrase in § 8(d)(4) must carry the same meaning. Pp. 352 U. S. 289-290.(e) This construction gives meaning to the congressional language which accords with the general purpose of the Act. Pp. 352 U. S. 290-292. Page 352 U. S. 283(f) The fact that, on October 23, the contract became terminable upon further notice by either party is immaterial. The statutory notice requirement operates wholly independently of whatever notice requirement the parties have fixed for themselves. P. 352 U. S. 292.2. The strike was not in breach of the contract, and the strikers were not disentitled to relief in proceedings before the Labor Board. Labor Board v. Sands Mfg. Co., 306 U. S. 332, distinguished. Pp. 352 U. S. 293-294.(a) Where there has been no express waiver of the right to strike, a waiver of the right during such a period is not to be inferred. P. 352 U. S. 293.(b) The two-phase provision for terminating the contract here involved does not mean that it was not within the contemplation of the parties that economic weapons might be used to support demands for modification before the notice to terminate was given. P. 352 U. S. 293.221 F.2d 231 reversed and remanded.

1960_143

MR. JUSTICE BLACK delivered the opinion of the Court.The Fifth Amendment to the United States Constitution provides in unequivocal terms that no person may "be compelled in any criminal case to be a witness against himself." To protect this right, Congress has declared that the failure of a defendant to testify in his own defense "shall not create any presumption against him." [Footnote 1] Ordinarily, the effectuation of this protection is a relatively simple matter -- if the defendant chooses not to take the stand, no comment or argument about his failure to testify is permitted. [Footnote 2] But where for any reason it becomes necessary to try a particular charge more than one time, a more complicated problem may be presented. For a defendant may choose to remain silent at his first trial and then decide to take the stand at a subsequent trial. When this occurs, questions arise as to the propriety of comment or argument in the second trial based upon the defendant's failure to take the stand at his previous trial. This case turns upon such a question.Petitioner has been tried three times in the District Court for the District of Columbia upon an indictment charging that he had committed first-degree murder under a felony-murder statute. [Footnote 3] In all three trials, petitioner's Page 366 U. S. 3 chief defense has been insanity but, on each occasion, the jury has rejected this defense and returned a verdict of guilty upon which the District of Columbia's mandatory death sentence has been imposed. [Footnote 4] After the first two trials, in which petitioner did not testify, the convictions and death sentences were set aside on the basis of trial errors that the Court of Appeals found had prevented a proper consideration of the case by the jury. [Footnote 5] At the third trial, in an apparent effort to bolster the contention of insanity, petitioner was placed upon the stand and asked a number of questions by defense counsel -- a maneuver obviously made for the purpose of giving the jury an opportunity directly to observe the functioning of petitioner's mental processes in the hope that such an exhibition would persuade them that his memory and mental comprehension were defective. Petitioner's responses to these questions were aptly described by the court below as "gibberish without meaning." [Footnote 6] Page 366 U. S. 4Upon cross-examination, the prosecutor attempted without noticeable success to demonstrate that these irrational answers were given by petitioner in furtherance of his plan to feign a mental weakness that did not exist. To this end, the prosecutor asked petitioner a number of questions about statements petitioner had allegedly made subsequent to his arrest, apparently in the hope that one of these questions would surprise petitioner and provoke a sensible response. When petitioner continued to talk in the same manner that he had used upon direct examination, the prosecutor concluded his cross-examination with the following remarks in the form of questions: "Willie, you were tried on two other occasions." And, "This is the first time you have gone on the stand, isn't it, Willie?" [Footnote 7]The defense moved immediately for a mistrial on the ground that it was highly prejudicial for the prosecutor to inform the jury of the defendant's failure to take the stand in his previous trials. The prosecutor defended his actions on the ground that this "is a fact that the Jury is entitled to know." The trial judge agreed with the prosecutor, denied the motion for a mistrial, and the trial proceeded, culminating in the third verdict of guilty and death sentence. On appeal, the case was heard by Page 366 U. S. 5 all nine members of the Court of Appeals sitting en banc, and was affirmed by a 5-4 vote [Footnote 8] -- the majority concluding that the issue was controlled by the decision of this Court in Raffel v. United States [Footnote 9] and the minority concluding that the issue was controlled by our decision in Grunewald v. United States. [Footnote 10] We granted certiorari to consider whether it was error for the trial court to deny the motion for a mistrial under the circumstances. [Footnote 11]In this Court, the Government concedes that the question put to the defendant about his prior failures to testify cannot be justified under Raffel, Grunewald, or any other of this Court's prior decisions. This concession, which we accept as proper, rests upon the Government's recognition of the fact that in no case has this Court intimated that there is such a basic inconsistency between silence at one trial and taking the stand at a subsequent trial that the fact of prior silence can be used to impeach any testimony which a defendant elects to give at a later trial. The Raffel case, relied upon by the majority below, involved a situation in which Raffel had sat silent at his first trial in the face of testimony by a government agent Page 366 U. S. 6 that Raffel had previously made admissions pointing to his guilt. On a second trial, Raffel took the stand and denied the truth of this same testimony offered by the same witness. Under these circumstances, this Court held that Raffel's silence at the first trial could be shown in order to discredit his testimony at the second trial on the theory that the silence itself constituted an admission as to the truth of the agent's testimony. The result was that Raffel's silence at the first trial was held properly admitted to impeach the specific testimony he offered at the second trial. Here, on the other hand, the defendant's entire "testimony" comprised nothing more than "gibberish without meaning," with the result that there was no specific testimony to impeach. Any attempt to impeach this defendant as a witness could therefore have related only to his demeanor on the stand, and, indeed, the majority below expressly rested its conclusion upon the view that the prosecution had the right, under Raffel, to test the genuineness of this sort of "demeanor evidence" by questions as to why it was not offered at previous trials. [Footnote 12] But if Raffel could properly be read as standing for this proposition, such questions would be permissible in every instance, for, whenever a witness takes the stand, he necessarily puts the genuineness of his demeanor into issue. [Footnote 13] The Government quite properly concedes that Page 366 U. S. 7 this cannot be the law, since it would conflict with the precise holding of this Court in the Grunewald case. [Footnote 14]Despite this concession, however, the Government persists in the contention that petitioner's conviction should be upheld, arguing that the error committed was harmless, and could not have affected the jury's verdict. This argument is rested upon three grounds: first, that the jury may not even have heard the improper question; secondly, that, even if the jury did hear the question, it may not have inferred that petitioner in fact did not testify at his previous trial; and, finally that, even if the jury did infer that petitioner did not testify previously, no inference adverse to petitioner would have been drawn from this fact. The first two of these grounds can be quickly disposed of. We can think of no justification for ignoring the part of a record showing error on a mere conjecture that the jury might not have heard the testimony that part of the record represents. Nor do we believe it reasonable to argue that the jury trying this case would not have inferred that this defendant had failed to testify in his prior trials when the prosecutor asked, "This is the first time you have gone on the stand, isn't it, Willie?" Indeed, the recognition that such an inference will in all likelihood be drawn from leading questions of this kind lies at the root of the long established rule that such questions may not properly be put unless the inference, if drawn, would be factually true. [Footnote 15] Thus, the Government's argument that Page 366 U. S. 8 the error was harmless must stand or fall upon the third ground it urges -- that the jury's awareness of petitioner's failure to take the stand at his previous trials would not have prejudiced the consideration of his case. The disposition of this contention requires the statement of a few more of the relevant facts of the case.In connection with the defense of insanity, petitioner had introduced evidence of both mental disease and mental defect, as those terms are applied in the relevant law of the District of Columbia. [Footnote 16] On the mental disease issue, the testimony was that petitioner was suffering from manic depressive psychosis, a disease which the record shows tends to fluctuate considerably in its manifestations from time to time. On the mental defect issue, the defense introduced evidence that petitioner had an intelligence level in the moronic class. The case went to the jury on both of these points, the jury being directed to acquit if it found the homicide to have been the product either of mental disease or mental defect. [Footnote 17] Petitioner's "testimony" thus raised at least two different issues in the minds of the jury: first, whether petitioner was simply Page 366 U. S. 9 feigning this testimony, and, secondly, whether, if not, petitioner's condition at the time of his third trial fairly represented his condition at the time of the act charged in the indictment. [Footnote 18]We think it apparent that the jury's awareness of petitioner's failure to testify at his first two trials could have affected its deliberations on either or both of these issues. Thus, the jury might well have thought it likely that petitioner elected to feign this "testimony" out of desperation brought on by his failure to gain acquittal without it in the two previous trials. Similarly, even if the jury believed petitioner's "testimony" was genuine, it might have thought that petitioner's condition was caused by a mental disease, and concluded that it is unlikely that a disease that had manifested itself only one out of three times for exhibition at trial was active at the occasion of the homicide. Or, on the same assumption, it might have thought that petitioner's failure to exhibit himself at the previous trials indicated that the condition manifested at this trial was the result of a worsening in his mental condition since those trials and, consequently, also since the commission of the acts charged in the indictment. There may be other ways in which the jury might have used the information improperly given it by the prosecution -- we have mentioned more than enough already, however, to satisfy ourselves that the Government's contention that the error was harmless must be rejected.The Government's final contention is that, even if the error was prejudicial, the conviction should be allowed Page 366 U. S. 10 to stand on the theory that the error was not sufficiently prejudicial to warrant the granting of a mistrial, and the defense made no request for cautionary instructions. One answer to this argument is to be found in the Government's own brief. For, in its argument regarding the possibility that the jury may not have been aware of the improper question, the Government stresses the fact that the question was not emphasized by any reference to it in the instructions to the jury. During the course of this argument the Government expressly recognizes that the danger of the situation would have been increased by a cautionary instruction in that such an instruction would have again brought the jury's attention to petitioner's prior failures to testify. Plainly, the defense was under no obligation to take such a risk. The motion for a mistrial was entirely appropriate, and, indeed, necessary to protect the interests of petitioner. [Footnote 19]We thus conclude that this conviction and sentence against petitioner cannot stand. In doing so, we agree with the point made by the Government in its brief -- that it is regrettable when the concurrent findings of 36 jurors are not sufficient finally to terminate a case. But, under our system, a man is entitled to the findings of 12 jurors on evidence fairly and properly presented to them. Petitioner may not be deprived of his life until that right is accorded him. That right was denied here by the prosecutor's improper questions.Reversed

U.S. Supreme CourtStewart v. United States, 366 U.S. 1 (1961)Stewart v. United StatesNo. 143Argued February 21, 1961Decided April 24, 1961366 U.S. 1SyllabusPetitioner was tried three times in a federal court for murder. At the first two trials, he did not testify in his own defense, but he did so at the third trial, at which the main issue was whether or not he was insane when the offense was committed. On cross-examination, the prosecutor alluded to the two earlier trials and asked, "This is the first time you have gone on the stand, isn't it, Willie?" Petitioner's counsel moved for a mistrial on the ground that it was prejudicial to inform the jury of petitioner's failure to take the stand in his previous trials. The motion was denied, and petitioner was convicted.Held: the question was prejudicial; the error was not harmless; a mistrial should have been granted; and the judgment affirming the conviction is reversed. Pp. 366 U. S. 2-10.107 U.S.App.D.C. 159, 275 F.2d 617, reversed. Page 366 U. S. 2

1989_87-2066

Justice SCALIA delivered the opinion of the Court.In this case, we must decide whether the act of state doctrine bars a court in the United States from entertaining a cause of action that does not rest upon the asserted invalidity of an official act of a foreign sovereign, but that does require imputing to foreign officials an unlawful motivation (the obtaining of bribes) in the performance of such an official act.IThe facts as alleged in respondent's complaint are as follows: In 1981, Harry Carpenter, who was then Chairman of the Board and Chief Executive Officer of petitioner W.S. Kirkpatrick & Co., Inc. (Kirkpatrick), learned that the Republic of Nigeria was interested in contracting for the construction and equipment of an aeromedical center at Kaduna Air Force Base in Nigeria. He made arrangements with Benson "Tunde" Akindele, a Nigerian citizen, whereby Page 493 U. S. 402 Akindele would endeavor to secure the contract for Kirkpatrick. It was agreed that, in the event the contract was awarded to Kirkpatrick, Kirkpatrick would pay to two Panamanian entities controlled by Akindele a "commission" equal to 20% of the contract price, which would in turn be given as a bribe to officials of the Nigerian Government. In accordance with this plan, the contract was awarded to petitioner W.S. Kirkpatrick & Co., International (Kirkpatrick International), a wholly owned subsidiary of Kirkpatrick; Kirkpatrick paid the promised "commission" to the appointed Panamanian entities; and those funds were disbursed as bribes. All parties agree that Nigerian law prohibits both the payment and the receipt of bribes in connection with the award of a government contract.Respondent Environmental Tectonics Corporation, International, an unsuccessful bidder for the Kaduna contract, learned of the 20% "commission" and brought the matter to the attention of the Nigerian Air Force and the United States Embassy in Lagos. Following an investigation by the Federal Bureau of Investigation, the United States Attorney for the District of New Jersey brought charges against both Kirkpatrick and Carpenter for violations of the Foreign Corrupt Practices Act of 1977, 91 Stat. 1495, as amended, 15 U.S.C. § 78dd-1 et seq., and both pleaded guilty.Respondent then brought this civil action in the United States District Court for the District of New Jersey against Carpenter, Akindele, petitioners, and others, seeking damages under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq., the Robinson-Patman Act, 49 Stat. 1526, 15 U.S.C. § 13 et seq., and the New Jersey Anti-Racketeering Act, N.J.Stat.Ann. § 2C:41-2 et seq. (West 1982). The defendants moved to dismiss the complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure on the ground that the action was barred by the act of state doctrine. Page 493 U. S. 403The District Court, having requested and received a letter expressing the views of the legal advisor to the United States Department of State as to the applicability of the act of state doctrine, treated the motion as one for summary judgment under Rule 56 of the Federal Rules of Civil Procedure, and granted the motion. Environmental Tectonics Corp., International v. W.S. Kirkpatrick & Co., Inc., 659 F. Supp. 1381 (1987). The District Court concluded that the act of state doctrine applies"if the inquiry presented for judicial determination includes the motivation of a sovereign act which would result in embarrassment to the sovereign or constitute interference in the conduct of foreign policy of the United States."Id., at 1392-1393 (citing Clayco Petroleum Corp. v. Occidental Petroleum Corp., 712 F.2d 404, 407 (CA9 1983)). Applying that principle to the facts at hand, the court held that respondent's suit had to be dismissed because, in order to prevail, respondents would have to show that"the defendants or certain of them intended to wrongfully influence the decision to award the Nigerian Contract by payment of a bribe, that the Government of Nigeria, its officials, or other representatives knew of the offered consideration for awarding the Nigerian Contract to Kirkpatrick, that the bribe was actually received or anticipated and that, 'but for' the payment or anticipation of the payment of the bribe, ETC would have been awarded the Nigerian Contract."659 F. Supp. at 1393 (footnote omitted).The Court of Appeals for the Third Circuit reversed. 847 F.2d 1052 (1988). Although agreeing with the District Court that"the award of a military procurement contract can be, in certain circumstances, a sufficiently formal expression of a government's public interests to trigger application"of the act of state doctrine, id. at 1058, it found application of the doctrine unwarranted on the facts of this case. The Court of Appeals found particularly persuasive the letter to the District Court from the legal advisor to the Department of State, which had stated that, in the opinion of the Department, judicial inquiry into the purpose behind the act of a foreign Page 493 U. S. 404 sovereign would not produce the"unique embarrassment, and the particular interference with the conduct of foreign affairs, that may result from the judicial determination that a foreign sovereign's acts are invalid."Id. at 1061. The Court of Appeals acknowledged that "the Department's legal conclusions as to the reach of the act of state doctrine are not controlling on the courts," but concluded that"the Department's factual assessment of whether fulfillment of its responsibilities will be prejudiced by the course of civil litigation is entitled to substantial respect."Id. at 1062. In light of the Department's view that the interests of the Executive Page 493 U. S. 405 Branch would not be harmed by prosecution of the action, the Court of Appeals held that Kirkpatrick had not met its burden of showing that the case should not go forward; accordingly, it reversed the judgment of the District Court and remanded the case for trial. Id. at 1067. We granted certiorari, 492 U. S. 9 (1989).IIThis Court's description of the jurisprudential foundation for the act of state doctrine has undergone some evolution over the years. We once viewed the doctrine as an expression of international law, resting upon "the highest considerations of international comity and expediency," Oetjen v. Central Leather Co., 246 U. S. 297, 246 U. S. 303-304 (1918). We have more recently described it, however, as a consequence of domestic separation of powers, reflecting "the strong sense of the Judicial Branch that its engagement in the task of passing on the validity of foreign acts of state may hinder" the conduct of foreign affairs, Banco Nacional de Cuba v. Sabbatino, 376 U. S. 398, 376 U. S. 423 (1964). Some Justices have suggested possible exceptions to application of the doctrine, where one or both of the foregoing policies would seemingly not be served: an exception, for example, for acts of state that consist of commercial transactions, since neither modern international comity nor the current position of our Executive Branch accorded sovereign immunity to such acts, see Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U. S. 682, 425 U. S. 695-706 (1976) (opinion of WHITE, J.); or an exception for cases in which the Executive Branch has represented that it has no objection to denying validity to the foreign sovereign act, since then the courts would be impeding no foreign policy goals, see First National City Bank v. Banco Nacional de Cuba, 406 U. S. 759, 406 U. S. 768-770 (1972) (opinion of REHNQUIST, J.).The parties have argued at length about the applicability of these possible exceptions, and, more generally, about whether the purpose of the act of state doctrine would be furthered by its application in this case. We find it unnecessary however, to pursue those inquiries, since the factual predicate for application of the act of state doctrine does not exist. Nothing in the present suit requires the court to declare invalid, and thus ineffective as "a rule of decision for the courts of this country," Ricaud v. American Metal Co., 246 U. S. 304, 246 U. S. 310 (1918), the official act of a foreign sovereign.In every case in which we have held the act of state doctrine applicable, the relief sought or the defense interposed would have required a court in the United States to declare invalid the official act of a foreign sovereign performed within its own territory. In Underhill v. Hernandez, 168 U. S. 250, 168 U. S. 254 (1897), holding the defendant's detention of the plaintiff to be tortious would have required denying legal effect to"acts of a military commander representing the authority of the revolutionary party as government, which afterwards succeeded and was recognized by the United States."In Oetjen v. Central Leather Co., supra, and in Ricaud v. American Metal Co., supra, denying title to the party who claimed through purchase from Mexico would have required declaring that government's prior seizure of the property, within its own territory, legally ineffective. See Oetjen, supra, 246 U.S. at 246 U. S. 304; Ricaud, supra, 246 U.S. at 246 U. S. 310. In Sabbatino, Page 493 U. S. 406 upholding the defendant's claim to the funds would have required a holding that Cuba's expropriation of goods located in Havana was null and void. In the present case, by contrast, neither the claim nor any asserted defense requires a determination that Nigeria's contract with Kirkpatrick International was, or was not, effective.Petitioners point out, however, that the facts necessary to establish respondent's claim will also establish that the contract was unlawful. Specifically, they note that, in order to prevail, respondent must prove that petitioner Kirkpatrick made, and Nigerian officials received, payments that violate Nigerian law, which would, they assert, support a finding that the contract is invalid under Nigerian law. Assuming that to be true, it still does not suffice. The act of state doctrine is not some vague doctrine of abstention, but a "principle of decision binding on federal and state courts alike." Sabbatino, supra, 376 U.S. at 376 U. S. 427 (emphasis added). As we said in Ricaud, "the act within its own boundaries of one sovereign State . . . becomes . . . a rule of decision for the courts of this country." 246 U.S. at 246 U. S. 310. Act of state issues only arise when a court must decide -- that is, when the outcome of the case turns upon -- the effect of official action by a foreign sovereign. When that question is not in the case, neither is the act of state doctrine. That is the situation here. Regardless of what the court's factual findings may suggest as to the legality of the Nigerian contract, its legality is simply not a question to be decided in the present suit, and there is thus no occasion to apply the rule of decision that the act of state doctrine requires. Cf. Sharon v. Time, Inc., 599 F. Supp. 538, 546 (SDNY 1984) ("The issue in this litigation is not whether [the alleged] acts are valid, but whether they occurred").In support of their position that the act of state doctrine bars any factual findings that may cast doubt upon the validity of foreign sovereign acts, petitioners cite Justice Holmes' opinion for the Court in American Banana Co. v. United Page 493 U. S. 407 Fruit Co., 213 U. S. 347 (1909). That was a suit under the United States antitrust laws, alleging that Costa Rica's seizure of the plaintiff's property had been induced by an unlawful conspiracy. In the course of a lengthy opinion Justice Holmes observed, citing Underhill, that "a seizure by a state is not a thing that can be complained of elsewhere in the courts." Id. at 213 U. S. 357-358. The statement is concededly puzzling. Underhill does indeed stand for the proposition that a seizure by a state cannot be complained of elsewhere -- in the sense of being sought to be declared ineffective elsewhere. The plaintiff in American Banana, however, like the plaintiff here, was not trying to undo or disregard the governmental action, but only to obtain damages from private parties who had procured it. Arguably, then, the statement did imply that suit would not lie if a foreign state's actions would be, though not invalidated, impugned.Whatever Justice Holmes may have had in mind, his statement lends inadequate support to petitioners' position here, for two reasons. First, it was a brief aside, entirely unnecessary to the decision. American Banana was squarely decided on the ground (later substantially overruled, see Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U. S. 690, 370 U. S. 704-705 (1962)) that the antitrust laws had no extraterritorial application, so that "what the defendant did in Panama or Costa Rica is not within the scope of the statute." 213 U.S. at 213 U. S. 357. Second, whatever support the dictum might provide for petitioners' position is more than overcome by our later holding in United States v. Sisal Sales Corp., 274 U. S. 268 (1927). There we held that, American Banana notwithstanding, the defendant's actions in obtaining Mexico's enactment of "discriminating legislation" could form part of the basis for suit under the United States antitrust laws. 274 U.S. at 274 U. S. 276. Simply put, American Banana was not Page 493 U. S. 408 an act of state case, and whatever it said by way of dictum that might be relevant to the present case has not survived Sisal Sales.Petitioners insist, however, that the policies underlying our act of state cases -- international comity, respect for the sovereignty of foreign nations on their own territory, and the avoidance of embarrassment to the Executive Branch in its conduct of foreign relations -- are implicated in the present case because, as the District Court found, a determination that Nigerian officials demanded and accepted a bribe "would impugn or question the nobility of a foreign nation's motivations," and would "result in embarrassment to the sovereign or constitute interference in the conduct of foreign policy of the United States." 659 F. Supp. at 1392-1393. The United States, as amicus curiae,, favors the same approach to the act of state doctrine, though disagreeing with petitioners as to the outcome it produces in the present case. We should not, the United States urges, "attach dispositive significance to the fact that this suit involves only the motivation' for, rather than the `validity' of, a foreign sovereign act," Brief for United States as Amicus Curiae 37, and should eschew "any rigid formula for the resolution of act of state cases generally," id. at 9. In some future case, perhaps,"litigation . . . based on alleged corruption in the award of contracts or other commercially oriented activities of foreign governments could sufficiently touch on 'national nerves' that the act of state doctrine or related principles of abstention would appropriately be found to bar the suit,"id. at 40 (quoting Sabbatino, 376 U.S. at 376 U. S. 428), and we should therefore resolve this case on the narrowest possible ground, viz., that the letter from the legal advisor to the District Court gives sufficient indication that, "in the setting of this case," the act of state doctrine poses no bar to adjudication, Ibid. * Page 493 U. S. 409These urgings are deceptively similar to what we said in Sabbatino, where we observed that sometimes, even though the validity of the act of a foreign sovereign within its own territory is called into question, the policies underlying the act of state doctrine may not justify its application. We suggested that a sort of balancing approach could be applied -- the balance shifting against application of the doctrine, for example, if the government that committed the "challenged act of state" is no longer in existence. 376 U.S. at 376 U. S. 428. But what is appropriate in order to avoid unquestioning judicial acceptance of the acts of foreign sovereigns is not similarly appropriate for the quite opposite purpose of expanding judicial incapacities where such acts are not directly (or even indirectly) involved. It is one thing to suggest, as we have, that the policies underlying the act of state doctrine should be considered in deciding whether, despite the doctrine's technical availability, it should nonetheless not be invoked; it is something quite different to suggest that those underlying policies are a doctrine unto themselves, justifying expansion of the act of state doctrine (or, as the United States puts it, unspecified "related principles of abstention") into new and uncharted fields.The short of the matter is this: Courts in the United States have the power, and ordinarily the obligation, to decide cases and controversies properly presented to them. The act of state doctrine does not establish an exception for cases and controversies that may embarrass foreign governments, but merely requires that, in the process of deciding, the acts of foreign sovereigns taken within their own jurisdictions shall be deemed valid. That doctrine has no application to the Page 493 U. S. 410 present case, because the validity of no foreign sovereign act is at issue.The judgment of the Court of Appeals for the Third Circuit is affirmed.It is so ordered

U.S. Supreme CourtKirkpatrick & Co. v. Evtl. Tectonics, 493 U.S. 400 (1990)W.S. Kirkpatrick & Co., Inc. v. EnvironmentalTectonics Corporation, InternationalNo. 87-2066Argued No.v 27, 1989Decided Jan. 17, 1990493 U.S. 400SyllabusAccording to respondent's complaint, petitioners obtained a construction contract from the Nigerian Government by bribing Nigerian officials. Nigerian law prohibits both the payment and the receipt of such bribes. Respondent, an unsuccessful bidder for the contract, filed an action for damages against petitioners and others under various federal and state statutes. The District Court ruled that the suit was barred by the act of state doctrine, which, in its view, precluded judicial inquiry into the motivation of a sovereign act that would result in embarrassment to the sovereign, or constitute interference with the conduct of United States foreign policy. The court granted summary judgment for petitioners because resolution of the case in favor of respondent would require imputing to foreign officials an unlawful motivation (the obtaining of bribes), and accordingly might embarrass the Executive Branch in its conduct of foreign relations. The Court of Appeals reversed and remanded the case for trial, holding that on the facts of this case the doctrine of sovereign immunity did not apply because no embarrassment of the Executive in its conduct of foreign affairs was evident.Held: The act of state doctrine does not apply because nothing in the present suit requires a court to declare invalid the official act of a foreign sovereign. See, e.g., Ricaud v. American Metal Co., 246 U. S. 304. It does not suffice that the facts necessary to establish respondent's claim will also establish that the Nigerian contract was unlawful, since the contract's legality is simply not a question that the District Court must decide. American Banana Co. v. United Fruit Co., 213 U. S. 347, 213 U. S. 357-358 (Holmes, J.) distinguished. Nor does it suffice that judgment in favor of respondents will require the court to impute to foreign officials improper motivation in the performance of official acts. To say that international comity, respect for the sovereignty of foreign nations, and the avoidance of embarrassment to the Executive Branch in its conduct of foreign relations are the policies underlying the act of state doctrine is not to say that the doctrine is applicable whenever those policies are implicated. The doctrine is not a rule of abstention which prohibits courts from deciding properly presented cases or controversies simply because the Executive's conduct of foreign relations may be adversely Page 493 U. S. 401 affected; it is a rule of decision which requires that, in the process of deciding, the acts of foreign sovereigns taken within their own jurisdictions be deemed valid. Pp. 493 U. S. 404-410.847 F.2d 1052 (CA3 1988), affirmed.SCALIA, J., delivered the opinion for a unanimous Court.

1982_82-695

JUSTICE BRENNAN delivered the opinion of the Court.The principal question in dispute between the parties is whether the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 829, as amended, 29 U.S.C. § 1001 et seq. (1976 ed. and Supp. V), permits state tax authorities Page 463 U. S. 4 to collect unpaid state income taxes by levying on funds held in trust for the taxpayers under an ERISA-covered vacation benefit plan. The issue is an important one, which affects thousands of federally regulated trusts and all nonfederal tax collection systems, and it must eventually receive a definitive, uniform resolution. Nevertheless, for reasons involving perhaps more history than logic, we hold that the lower federal courts had no jurisdiction to decide the question in the case before us, and we vacate the judgment and remand the case with instructions to remand it to the state court from which it was removed.INone of the relevant facts is in dispute. Appellee Construction Laborers Vacation Trust for Southern California (CLVT) [Footnote 1] is a trust established by an agreement between four associations of employers active in the construction industry in southern California and the Southern California District Council of Laborers, an arm of the District Council and affiliated locals of the Laborers' International Union of North America. The purpose of the agreement and trust was to establish a mechanism for administering the provisions of a collective bargaining agreement that grants construction workers a yearly paid vacation. [Footnote 2] The trust agreement expressly proscribes any assignment, pledge, or encumbrance of Page 463 U. S. 5 funds held in trust by CLVT. [Footnote 3] The Plan that CLVT administers is unquestionably an "employee welfare benefit plan" within the meaning of § 3 of ERISA, 29 U.S.C. § 1002(1), and CLVT and its individual trustees are thereby subject to extensive regulation under Titles I and III of ERISA.Appellant Franchise Tax Board is a California agency charged with enforcement of that State's personal income tax law. California law authorizes appellant to require any person in possession of "credits or other personal property or other things of value, belonging to a taxpayer""to withhold . . . the amount of any tax, interest, or penalties due from the taxpayer . . . and to transmit the amount withheld to the Franchise Tax Board."Cal.Rev. & Tax. Code Ann. § 18817 (West Supp.1983). Any person who, upon notice by the Franchise Tax Board, fails to comply with its request to withhold and to transmit funds becomes personally liable for the amounts identified in the notice. § 18818.In June, 1980, the Franchise Tax Board filed a complaint in state court against CLVT and its trustees. Under the heading "First Cause of Action," appellant alleged that CLVT had failed to comply with three levies issued under § 18817, [Footnote 4] concluding Page 463 U. S. 6 with the allegation that it had been "damaged in a sum . . . not to exceed $380.56 plus interest from June 1, 1980." App. 3-8. Under the heading "Second Cause of Action," appellant incorporated its previous allegations and added:"There was at the time of the levies alleged above and continues to be an actual controversy between the parties concerning their respective legal rights and duties. The Board [appellant] contends that defendants [CLVT] are obligated and required by law to pay over to the Board all amounts held . . . in favor of the Board's delinquent taxpayers. On the other hand, defendants contend that section 514 of ERISA preempts state law and that the trustees lack the power to honor the levies made upon them by the State of California. "Page 463 U. S. 7"[D]efendants will continue to refuse to honor the Board's levies in this regard. Accordingly, a declaration by this court of the parties' respective rights is required to fully and finally resolve this controversy."Id. at 8-9. In a prayer for relief, appellant requested damages for defendants' failure to honor the levies and a declaration that defendants are "legally obligated to honor all future levies by the Board." Id. at 9. [Footnote 5]CLVT removed the case to the United States District Court for the Central District of California, and the court denied the Franchise Tax Board's motion for remand to the state court. On the merits, the District Court ruled that ERISA did not preempt the State's power to levy on funds held in trust by CLVT. CLVT appealed, and the Court of Appeals reversed. 679 F.2d 1307 (CA9 1982). On petition for rehearing, the Franchise Tax Board renewed its argument that the District Court lacked jurisdiction over the complaint in this case. The petition for rehearing was denied, and an appeal was taken to this Court. We postponed consideration of our jurisdiction pending argument on the merits. 459 U.S. 1085 (1982). We now hold that this case was not within the removal jurisdiction conferred by 28 U.S.C. § 1441, and therefore we do not reach the merits of the preemption question. [Footnote 6]IIThe jurisdictional structure at issue in this case has remained basically unchanged for the past century. With exceptions not relevant here,"any civil action brought in a Page 463 U. S. 8 State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending."Ibid. If it appears before final judgment that a case was not properly removed, because it was not within the original jurisdiction of the United States district courts, the district court must remand it to the state court from which it was removed. See 28 U.S.C. § 1447(c). For this case -- as for many cases where there is no diversity of citizenship between the parties -- the propriety of removal turns on whether the case falls within the original "federal question" jurisdiction of the United States district courts: "The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331 (1976 ed., Supp. V). [Footnote 7] Since the first version of § 1331 was enacted, Act of Mar. 3, 1875, ch. 137, § 1, 18 Stat. 470, the statutory phrase "arising under the Constitution, laws, or treaties of the United States" has resisted all attempts to frame a single, precise definition for determining which cases fall within, and which cases fall outside, the original jurisdiction of the district courts. Especially when considered in light of § 1441's removal jurisdiction, the phrase "arising under" masks a welter of issues regarding the interrelation of federal and state authority and the proper management of the federal judicial system. [Footnote 8]The most familiar definition of the statutory "arising under" limitation is Justice Holmes' statement, "A suit arises Page 463 U. S. 9 under the law that creates the cause of action." American Well Works Co. v. Layne & Bowler Co., 241 U. S. 257, 241 U. S. 260 (1916). However, it is well settled that Justice Holmes' test is more useful for describing the vast majority of cases that come within the district courts' original jurisdiction than it is for describing which cases are beyond district court jurisdiction. We have often held that a case "arose under" federal law where the vindication of a right under state law necessarily turned on some construction of federal law, see, e.g., Smith v. Kansas City Title & Trust Co., 255 U. S. 180 (1921); Hopkins v. Walker, 244 U. S. 486 (1917), and even the most ardent proponent of the Holmes test has admitted that it has been rejected as an exclusionary principle, see Flournoy v. Wiener, 321 U. S. 253, 321 U. S. 270-272 (1944) (Frankfurter, J., dissenting). See also T. B. Harms Co. v. Eliscu, 339 F.2d 823, 827 (CA2 1964) (Friendly, J.). Leading commentators have suggested that for purposes of § 1331 an action "arises under" federal law"if in order for the plaintiff to secure the relief sought he will be obliged to establish both the correctness and the applicability to his case of a proposition of federal law."P. Bator, P. Mishkin, D. Shapiro, & H. Wechsler, Hart and Wechsler's The Federal Courts and the Federal System 889 (2d ed.1973) (hereinafter Hart & Wechsler); cf. T. B. Harms Co., supra, at 827 ("a case may arise under' a law of the United States if the complaint discloses a need for determining the meaning or application of such a law").One powerful doctrine has emerged, however -- the "well-pleaded complaint" rule -- which, as a practical matter, severely limits the number of cases in which state law "creates the cause of action" that may be initiated in or removed to Page 463 U. S. 10 federal district court, thereby avoiding more or less automatically a number of potentially serious federal-state conflicts."[W]hether a case is one arising under the Constitution or a law or treaty of the United States, in the sense of the jurisdictional statute, . . . must be determined from what necessarily appears in the plaintiff's statement of his own claim in the bill or declaration, unaided by anything alleged in anticipation of avoidance of defenses which it is thought the defendant may interpose."Taylor v. Anderson, 234 U. S. 74, 234 U. S. 75-76 (1914). Thus, a federal court does not have original jurisdiction over a case in which the complaint presents a state law cause of action, but also asserts that federal law deprives the defendant of a defense he may raise, Taylor v. Anderson, supra; Louisville & Nashville R. Co. v. Mottley, 211 U. S. 14 (1908), or that a federal defense the defendant may raise is not sufficient to defeat the claim, Tennessee v. Union & Planters' Bank, 152 U. S. 454 (1894)."Although such allegations show that very likely, in the course of the litigation, a question under the Constitution would arise, they do not show that the suit, that is, the plaintiff's original cause of action, arises under the Constitution."Louisville & Nashville R. Co. v. Mottley, supra, at 211 U. S. 152. For better or worse, under the present statutory scheme as it has existed since 1887, a defendant may not remove a case to federal court unless the plaintiff's complaint establishes that the case "arises under" federal law. [Footnote 9]"[A] right or immunity created by the Page 463 U. S. 11 Constitution or laws of the United States must be an element, and an essential one, of the plaintiff's cause of action."Gully v. First National Bank in Meridian, 299 U. S. 109, 299 U. S. 112 (1936).For many cases in which federal law becomes relevant only insofar as it sets bounds for the operation of state authority, the well-pleaded complaint rule makes sense as a quick rule of thumb. Describing the case before the Court in Gully, [Footnote 10] Justice Cardozo wrote:"Petitioner will have to prove that the state law has been obeyed before the question will be reached whether anything in its provisions or in administrative conduct under it is inconsistent with the federal rule. If what was done by the taxing officers in levying the tax in suit did not amount in substance under the law of Mississippi to an assessment of the shareholders, but in substance as Page 463 U. S. 12 well as in form was an assessment of the bank alone, the conclusion will be inescapable that there was neither tax nor debt, apart from any barriers Congress may have built. On the other hand, a finding upon evidence that the Mississippi law has been obeyed may compose the controversy altogether, leaving no room for a contention that the federal law has been infringed. The most that one can say is that a question of federal law is lurking in the background, just as farther in the background there lurks a question of constitutional law, the question of state power in our federal form of government. A dispute so doubtful and conjectural, so far removed from plain necessity, is unavailing to extinguish the jurisdiction of the states."Id. at 299 U. S. 117.The rule, however, may produce awkward results, especially in cases in which neither the obligation created by state law nor the defendant's factual failure to comply are in dispute, and both parties admit that the only question for decision is raised by a federal preemption defense. Nevertheless, it has been correctly understood to apply in such situations. [Footnote 11] As we said in Gully:"By unimpeachable authority, a suit brought upon a state statute does not arise under an act of Congress or the Constitution of the United States because prohibited thereby."Id. at 299 U. S. 116. [Footnote 12] Page 463 U. S. 13IIISimply to state these principles is not to apply them to the case at hand. Appellant's complaint sets forth two "causes of action," one of which expressly refers to ERISA; if either comes within the original jurisdiction of the federal courts, removal was proper as to the whole case. See 28 U.S.C. § 1441(c). Although appellant's complaint does not specifically assert any particular statutory entitlement for the relief it seeks, the language of the complaint suggests (and the parties do not dispute) that appellant's "first cause of action" states a claim under Cal.Rev. & Tax. Code Ann. § 18818 (West Supp.1983), see supra at 463 U. S. 5-6, and its "second cause of action" states a claim under California's Declaratory Judgment Act, Cal.Civ.Proc.Code Ann. § 1060 (West 1980). As an initial proposition, then, the "law that creates the cause of action" is state law, and original federal jurisdiction is unavailable unless it appears that some substantial, disputed question of federal law is a necessary element of one of the well-pleaded state claims, or that one or the other claim is "really" one of federal law.AEven though state law creates appellant's causes of action, its case might still "arise under" the laws of the United States if a well-pleaded complaint established that its right to relief under state law requires resolution of a substantial question of federal law in dispute between the parties. For appellant's first cause of action -- to enforce its levy, under § 18818 -- a straightforward application of the well-pleaded complaint rule precludes original federal court jurisdiction. California law establishes a set of conditions, without reference to federal law, under which a tax levy may be enforced; federal law becomes relevant only by way of a defense to an obligation created entirely by state law, and then only if appellant has made out a valid claim for relief under state law. See supra at 463 U. S. 11-12. The well-pleaded complaint rule was framed to deal with precisely such a situation. As we discuss Page 463 U. S. 14 above, since 1887, it has been settled law that a case may not be removed to federal court on the basis of a federal defense, including the defense of preemption, even if the defense is anticipated in the plaintiff's complaint, and even if both parties admit that the defense is the only question truly at issue in the case.Appellant's declaratory judgment action poses a more difficult problem. Whereas the question of federal preemption is relevant to appellant's first cause of action only as a potential defense, it is a necessary element of the declaratory judgment claim. Under Cal.Civ.Proc.Code Ann. § 1060 (West 1980), a party with an interest in property may bring an action for a declaration of another party's legal rights and duties with respect to that property upon showing that there is an "actual controversy relating to the legal rights and duties" of the parties. The only questions in dispute between the parties in this case concern the rights and duties of CLVT and its trustees under ERISA. Not only does appellant's request for a declaratory judgment under California law clearly encompass questions governed by ERISA, but appellant's complaint identifies no other questions as a subject of controversy between the parties. Such questions must be raised in a well-pleaded complaint for a declaratory judgment. [Footnote 13] Therefore, it is clear on the face of its well-pleaded complaint that appellant may not obtain the relief it seeks in its second cause of action ("[t]hat the court declare defendants legally obligated to honor all future levies by the Board upon [CLVT]," App. 9) without a construction of ERISA and/or an adjudication of its preemptive effect and constitutionality -- all questions of federal law. Page 463 U. S. 15Appellant argues that original federal court jurisdiction over such a complaint is foreclosed by our decision in Skelly Oil Co. v. Phillips Petroleum Co., 339 U. S. 667 (1950). As we shall see, however, Skelly Oil is not directly controlling.In Skelly Oil, Skelly Oil and Phillips had a contract, for the sale of natural gas, that entitled the seller -- Skelly Oil -- to terminate the contract at any time after December 1, 1946, if the Federal Power Commission had not yet issued a certificate of convenience and necessity to a third party, a pipeline company to whom Phillips intended to resell the gas purchased from Skelly Oil. Their dispute began when the Federal Power Commission informed the pipeline company on November 30 that it would issue a conditional certificate, but did not make its order public until December 2. By this time, Skelly Oil had notified Phillips of its decision to terminate their contract. Phillips brought an action in United States District Court under the federal Declaratory Judgment Act, 28 U.S.C. § 2201, seeking a declaration that the contract was still in effect. 339 U.S. at 339 U. S. 669-671.There was no diversity between the parties, and we held that Phillips' claim was not within the federal question jurisdiction conferred by § 1331. We reasoned:"'[T]he operation of the Declaratory Judgment Act is procedural only.' Aetna Life In. Co. v. Haworth, 300 U. S. 227, 300 U. S. 240. Congress enlarged the range of remedies available in the federal courts, but did not extend their jurisdiction. When concerned as we are with the power of the inferior federal courts to entertain litigation within the restricted area to which the Constitution and Acts of Congress confine them, 'jurisdiction' means the kinds of issues which give right of entrance to federal courts. Jurisdiction in this sense was not altered by the Declaratory Judgment Act. Prior to that Act, a federal court would entertain a suit on a contract only if the plaintiff asked for an immediately enforceable remedy Page 463 U. S. 16 like money damages or an injunction, but such relief could only be given if the requisites of jurisdiction, in the sense of a federal right or diversity, provided foundation for resort to the federal courts. The Declaratory Judgment Act allowed relief to be given by way of recognizing the plaintiff's right even though no immediate enforcement of it was asked. But the requirements of jurisdiction -- the limited subject matters which alone Congress had authorized the District Courts to adjudicate -- were not impliedly repealed or modified."339 U.S. at 339 U. S. 671-672. We then observed that, under the well-pleaded complaint rule, an action by Phillips to enforce its contract would not present a federal question. Id. at 339 U. S. 672. Skelly Oil has come to stand for the proposition that,"if, but for the availability of the declaratory judgment procedure, the federal claim would arise only as a defense to a state created action, jurisdiction is lacking."10A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2767, pp. 744-745 (2d ed.1983). Cf. Public Service Comm'n of Utah v. Wycoff Co., 344 U. S. 237, 344 U. S. 248 (1952) (dictum). [Footnote 14] Page 463 U. S. 171. As an initial matter, we must decide whether the doctrine of Skelly Oil limits original federal court jurisdiction under § 1331 -- and by extension removal jurisdiction under § 1441 -- when a question of federal law appears on the face of a well-pleaded complaint for a state law declaratory judgment. Apparently, it is a question of first impression. [Footnote 15] As the passage quoted above makes clear, Skelly Oil relied significantly on the precise contours of the federal Declaratory Judgment Act, as well as of § 1331. Cf. 339 U.S. at 339 U. S. 674 (stressing the need to respect "the limited procedural purpose of the Declaratory Judgment Act"). The Court's emphasis that the Declaratory Judgment Act was intended to affect only the remedies available in a federal district court, not the court's jurisdiction, was critical to the Court's reasoning. Our interpretation of the federal Declaratory Judgment Act in Skelly Oil does not apply of its own force to state declaratory judgment statutes, many of which antedate the federal statute, see Developments in the Law -- Declaratory Judgments -- 1941-1949, 62 Harv.L.Rev. 787, 790-791 (1949). [Footnote 16] Cf. 288 U. S. C. & St. L. R. Co. v. Wallace, 288 Page 463 U. S. 18 U.S. 249, 288 U. S. 264-265 (1933) (Supreme Court appellate jurisdiction over federal questions in a state declaratory judgment). Yet while Skelly Oil itself is limited to the federal Declaratory Judgment Act, fidelity to its spirit leads us to extend it to state declaratory judgment actions as well. If federal district courts could take jurisdiction, either originally or by removal, of state declaratory judgment claims raising questions of federal law, without regard to the doctrine of Skelly Oil, the federal Declaratory Judgment Act -- with the limitations Skelly Oil read into it -- would become a dead letter. For any case in which a state declaratory judgment action was available, litigants could get into federal court for a declaratory judgment, despite our interpretation of § 2201, simply by pleading an adequate state claim for a declaration of federal law. Having interpreted the Declaratory Judgment Act of 1934 to include certain limitations on the jurisdiction of federal district courts to entertain declaratory judgment suits, we should be extremely hesitant to interpret the Judiciary Act of 1875 and its 1887 amendments in a way that renders the limitations in the later statute nugatory. Therefore, we hold that, under the jurisdictional statutes as they now stand, [Footnote 17] Page 463 U. S. 19 federal courts do not have original jurisdiction, nor do they acquire jurisdiction on removal, when a federal question is presented by a complaint for a state declaratory judgment, but Skelly Oil would bar jurisdiction if the plaintiff had sought a federal declaratory judgment.2. The question, then, is whether a federal district court could take jurisdiction of appellant's declaratory judgment claim had it been brought under 28 U.S.C. § 2201. [Footnote 18] The application of Skelly Oil to such a suit is somewhat unclear. Federal courts have regularly taken original jurisdiction over declaratory judgment suits in which, if the declaratory judgment defendant brought a coercive action to enforce its rights, that suit would necessarily present a federal question. [Footnote 19] Section 502(a)(3) of ERISA specifically grants trustees of ERISA-covered plans like CLVT a cause of action for Page 463 U. S. 20 injunctive relief when their rights and duties under ERISA are at issue, and that action is exclusively governed by federal law. [Footnote 20] If CLVT could have sought an injunction under ERISA against application to it of state regulations that require acts inconsistent with ERISA, [Footnote 21] does a declaratory judgment suit by the State "arise under" federal law?We think not. We have always interpreted what Skelly Oil called "the current of jurisdictional legislation since the Act of March 3, 1875," 339 U.S. at 673, with an eye to practicality and necessity."What is needed is something of that common-sense accommodation of judgment to kaleidoscopic situations which characterizes the law in its treatment of problems of causation . . . a selective process which picks the substantial causes out of the web and lays the other ones Page 463 U. S. 21 aside.""Gully v. First National Bank in Meridian, 299 U.S. at 299 U. S. 117-118. There are good reasons why the federal courts should not entertain suits by the States to declare the validity of their regulations despite possibly conflicting federal law. States are not significantly prejudiced by an inability to come to federal court for a declaratory judgment in advance of a possible injunctive suit by a person subject to federal regulation. They have a variety of means by which they can enforce their own laws in their own courts, and they do not suffer if the preemption questions such enforcement may raise are tested there. [Footnote 22] The express grant of federal jurisdiction in ERISA is limited to suits brought by certain parties, see infra at 463 U. S. 25, as to whom Congress presumably determined that a right to enter federal court was necessary to further the statute's purposes. [Footnote 23] It did not go so far as to provide that any suit against such parties must also be brought in federal court when they themselves did not choose to sue. The situation presented by a State's suit for a declaration of the validity of state law is sufficiently removed from the spirit of necessity and careful limitation of district court jurisdiction Page 463 U. S. 22 that informed our statutory interpretation in Skelly Oil and Gully to convince us that, until Congress informs us otherwise, such a suit is not within the original jurisdiction of the United States district courts. Accordingly, the same suit brought originally in state court is not removable either. [Footnote 24]"BCLVT also argues that appellant's "causes of action" are, in substance, federal claims. Although we have often repeated that "the party who brings a suit is master to decide what law he will rely upon," The Fair v. Kohler Die & Specialty Co., 228 U. S. 22, 228 U. S. 25 (1913), it is an independent corollary of the well-pleaded complaint rule that a plaintiff may not defeat removal by omitting to plead necessary federal questions in a complaint, see Avco Corp. v. Aero Lodge No. 75, Int'l Assn. of Machinists, 376 F.2d 337, 339-340 (CA6 1967), aff'd, 390 U.S. 390 U. S. 557 (1968).CLVT's best argument stems from our decision in Avco Corp. v. Aero Lodge No. 75. In that case, the petitioner filed suit in state court alleging simply that it had a valid contract with the respondent, a union, under which the respondent had agreed to submit all grievances to binding arbitration and not to cause or sanction any "work stoppages, strikes, or slowdowns." The petitioner further alleged that the respondent and its officials had violated the agreement by Page 463 U. S. 23 participating in and sanctioning work stoppages, and it sought temporary and permanent injunctions against further breaches. App. O.T. 1967, No. 445, pp. 2-9. It was clear that, had petitioner invoked it, there would have been a federal cause of action under § 301 of the Labor Management Relations Act, 1947 (LMRA), 29 U.S.C. § 185, see Textile Workers v. Lincoln Mills, 353 U. S. 448 (1957), and that, even in state court, any action to enforce an agreement within the scope of § 301 would be controlled by federal law, see Teamsters v. Lucas Flour Co., 369 U. S. 95, 369 U. S. 103-104 (1962). It was also clear, however, under the law in effect at the time, that independent limits on federal jurisdiction made it impossible for a federal court to grant the injunctive relief petitioner sought. See Sinclair Refining Co. v. Atkinson, 370 U. S. 195 (1962) (later overruled in Boys Markets, Inc. v. Retail Clerks, 398 U. S. 235 (1970)).The Court of Appeals held, 376 F.2d at 340, and we affirmed, 390 U.S. at 390 U. S. 560, that the petitioner's action "arose under" § 301, and thus could be removed to federal court, although the petitioner had undoubtedly pleaded an adequate claim for relief under the state law of contracts and had sought a remedy available only under state law. The necessary ground of decision was that the preemptive force of § 301 is so powerful as to displace entirely any state cause of action "for violation of contracts between an employer and a labor organization." [Footnote 25] Any such suit is purely a creature of federal law, notwithstanding the fact that state law would provide a cause of action in the absence of § 301. Avco Page 463 U. S. 24 stands for the proposition that, if a federal cause of action completely preempts a state cause of action any complaint that comes within the scope of the federal cause of action necessarily "arises under" federal law.CLVT argues by analogy that ERISA, like § 301, was meant to create a body of federal common law, and that"any state court action which would require the interpretation or application of ERISA to a plan document 'arises under' the laws of the United States."Brief for Appellees 20-21. ERISA contains provisions creating a series of express causes of action in favor of participants, beneficiaries, and fiduciaries of ERISA-covered plans, as well as the Secretary of Labor. § 502(a), 29 U.S.C. § 1132(a). [Footnote 26] It may be that, as with § 301 as interpreted in Avco, any state action coming within the scope of § 502(a) of ERISA would be removable to federal district court, even if an otherwise adequate state cause of action were pleaded without reference to federal law. [Footnote 27] It does not follow, however, that either of appellant's Page 463 U. S. 25 claims in this case comes within the scope of one of ERISA's causes of action.The phrasing of § 502(a) is instructive. Section 502(a) specifies which persons -- participants, beneficiaries, fiduciaries, or the Secretary of Labor -- may bring actions for particular kinds of relief. It neither creates nor expressly denies any cause of action in favor of state governments, to enforce tax levies or for any other purpose. It does not purport to reach every question relating to plans covered by ERISA. [Footnote 28] Furthermore, § 514(b)(2)(A) of ERISA, 29 U.S.C. § 1144(b)(2)(A), makes clear that Congress did not intend to preempt entirely every state cause of action relating to such plans. With important, but express, limitations, it states that"nothing in this subchapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance, banking, or securities."Against this background, it is clear that a suit by state tax authorities under a statute like § 18818 does not "arise under" ERISA. Unlike the contract rights at issue in Avco, the State's right to enforce its tax levies is not of central concern Page 463 U. S. 26 to the federal statute. For that reason, as in Gully, see supra at 463 U. S. 11-12, on the face of a well-pleaded complaint there are many reasons completely unrelated to the provisions and purposes of ERISA why the State may or may not be entitled to the relief it seeks. [Footnote 29] Furthermore, ERISA does not provide an alternative cause of action in favor of the State to enforce its rights, while § 301 expressly supplied the plaintiff in Avco with a federal cause of action to replace its preempted state contract claim. Therefore, even though the Court of Appeals may well be correct that ERISA precludes enforcement of the State's levy in the circumstances of this case, an action to enforce the levy is not itself preempted by ERISA. Once again, appellant's declaratory judgment cause of action presents a somewhat more difficult issue. The question on which a declaration is sought -- that of the CLVT trustees' "power to honor the levies made upon them by the State of California," see supra at 463 U. S. 6 -- is undoubtedly a matter of concern under ERISA. It involves the meaning and enforceability of provisions in CLVT's trust agreement forbidding the trustees to assign or otherwise to alienate funds held in trust, see supra at 463 U. S. 4-5, and n. 3, and thus comes within the class of questions for which Congress intended that federal courts create federal common law. [Footnote 30] Under § 502(a)(3)(B) of Page 463 U. S. 27 ERISA, a participant, beneficiary, or fiduciary of a plan covered by ERISA may bring a declaratory judgment action in federal court to determine whether the plan's trustees may comply with a state levy on funds held in trust. [Footnote 31] Nevertheless, CLVT's argument that appellant's second cause of action arises under ERISA fails for the second reason given above. ERISA carefully enumerates the parties entitled to seek relief under § 502; it does not provide anyone other than participants, beneficiaries, or fiduciaries with an express cause of action for a declaratory judgment on the issues in this case. A suit for similar relief by some other party does not "arise under" that provision. [Footnote 32]IVOur concern in this case is consistent application of a system of statutes conferring original federal court jurisdiction, as they have been interpreted by this Court over many years. Under our interpretations, Congress has given the lower federal courts jurisdiction to hear, originally or by removal from a state court, only those cases in which a well-pleaded complaint establishes either that federal law creates Page 463 U. S. 28 the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law. We hold that a suit by state tax authorities both to enforce its levies against funds held in trust pursuant to an ERISA-covered employee benefit plan and to declare the validity of the levies notwithstanding ERISA is neither a creature of ERISA itself nor a suit of which the federal courts will take jurisdiction because it turns on a question of federal law. Accordingly, we vacate the judgment of the Court of Appeals and remand so that this case may be remanded to the Superior Court of the State of California for the County of Los Angeles.It is so ordered

U.S. Supreme CourtFranchise Tax Bd. v. Construction Laborers, 463 U.S. 1 (1983)Franchise Tax Bd. v. Construction LaborersVacation Trust for Southern CaliforniaNo. 82-695.Argued April 19, 1983Decided June 24, 1983463 U.S. 1SyllabusAppellee Construction Laborers Vacation Trust for Southern California (CLVT) was established by an agreement between construction industry employer associations and a labor union to provide a mechanism for administering the provisions of a collective bargaining agreement granting construction workers a yearly paid vacation. The trust qualifies as a "welfare benefit plan" within the meaning of § 3 of the Employee Retirement Income Security Act of 1974 (ERISA), and hence is subject to regulation under ERISA. Appellant California Franchise Tax Board filed a complaint in California state court against CLVT and its trustees, alleging two causes of action: (1) that CLVT had failed to comply with certain tax levies issued under a California statute, thereby becoming liable for damages for such failure, and (2) that, in view of the defendants' contention that ERISA preempted state law and that the trustees lacked power to honor the levies, a judgment be issued declaring the parties' respective rights. CLVT removed the case to Federal District Court, which, after denying appellant's motion for remand to the state court, held that ERISA did not preempt the State's power to levy on the funds held in trust by CLVT. The Court of Appeals reversed.Held: The case is not within the removal jurisdiction conferred by 28 U.S.C.§ 1441. Pp. 465 U. S. 7-28. Page 463 U. S. 2(a) Where there is no diversity of citizenship between the parties, as in this case, the propriety of removal turns on whether the case falls within the original "federal question" jurisdiction of United States district courts under 28 U.S.C. § 1331 (1976 ed., Supp. V). Under the "well-pleaded complaint" rule, a defendant may not remove such a case to federal court unless the plaintiff's complaint establishes that the case "arises under" federal law within the meaning of § 1331, and it may not be removed on the basis of a federal defense, including the defense of preemption, even if the defense is anticipated in the complaint and both parties admit that the defense is the only question truly at issue. Pp. 463 U. S. 7-12.(b) For appellant's first cause of action, a straightforward application of the well-pleaded complaint rule precludes original federal court jurisdiction, and thus the cause of action was not removable. California law establishes a set of conditions, without reference to federal law, under which a tax levy may be enforced; federal law becomes relevant only by way of a defense to an obligation created entirely by state law, and then only if appellant has made out a valid claim for relief under state law. Pp. 463 U. S. 13-14.(c) Nor is appellant's second cause of action removable to federal court. Under the federal jurisdictional statutes, federal courts do not have original jurisdiction, nor do they acquire jurisdiction on removal, when a federal question is presented by a complaint for a state declaratory judgment, and where, if the plaintiff had sought a federal declaratory judgment, federal jurisdiction would be barred by Skelly Oil Co. v. Phillips Petroleum Co., 339 U. S. 667, under which federal jurisdiction is lacking if, but for the availability of the federal declaratory judgment procedure, a federal claim would arise only as a defense to a state-created action. The situation presented by a State's suit for a declaration of the validity of state law is sufficiently removed from the spirit of necessity and careful limitation of federal district court jurisdiction that informed this Court's statutory interpretation in Skelly Oil and Gully v. First National Bank in Meridian, 299 U. S. 109, to convince the Court that, until Congress informs it otherwise, such a suit is not within the district courts' original jurisdiction. Accordingly, the same suit brought originally in state court is not removable. Pp. 463 U. S. 14-22.(d) A suit by state tax authorities under a statute like the California tax levy statute involved here does not "arise" under ERISA. The State's right to enforce its tax levies is not of central concern to the federal statute. Avco Corp. v. Machinists, 390 U. S. 557, distinguished. Even though ERISA may preclude enforcement of the State's levy in the circumstances of this case, an action to enforce the levy is not itself preempted by ERISA. On the face of a well-pleaded complaint there are Page 463 U. S. 3 many reasons completely unrelated to ERISA's provisions and purposes why the State may or may not be entitled to the relief it seeks. Moreover, ERISA does not provide an alternative cause of action in the State's favor to enforce its rights. Nor does appellant's second cause of action arise under ERISA. ERISA enumerates the parties entitled to seek a declaratory judgment under § 502 of that Act; it does not provide anyone other than participants, beneficiaries, or fiduciaries of an ERISA-covered plan with an express cause of action for a declaratory judgment on the issues of this case. A suit for similar relief by some other party does not "arise under" that provision. Pp. 463 U. S. 22-27.679 F.2d 1307, vacated and remanded.BRENNAN, J., delivered the opinion for a unanimous Court.

1991_90-848

Keating L. Simons III argued the cause and filed a brief for respondent. *JUSTICE KENNEDY delivered the opinion of the Court.In this case we must decide whether the Federal Employers' Liability Act (FELA), 53 Stat. 1404,45 U. S. C. §§ 51-60, creates a cause of action against a state-owned railroad, enforceable in state court. We hold that it does, reaffirming in part our decision in Parden v. Terminal Railway of Alabama Docks Dept., 377 U. S. 184 (1964).IPetitioner Kenneth Hilton was an employee of the South Carolina Public Railways Commission. The commission, which has some 300 employees, is a common carrier engaged in interstate commerce by railroad and is an agency of the State of South Carolina, having been created by statute in 1969. Hilton alleges he was injured in the scope and course of his employment and that the negligence of the commission was the cause of the accident. In the case now before us the commission is the respondent.To recover for his injuries, petitioner first filed a FELA action in United States District Court. That case was pending when we announced our decision in Welch v. Texas Dept. of Highways and Public Transportation, 483 U. S. 468 (1987), which held that the Jones Act, § 33, 41 Stat. 1007, 46 U. S. C. App. § 688, does not abrogate the States' Eleventh Amendment immunity. The Jones Act incorporates the remedial scheme of FELA; and, based on his understanding that Eleventh Amendment immunity from Jones Act suits would apply as well to FELA, petitioner dismissed his* Robert M. Weinberg, Walter Kamiat, and Laurence Gold filed a brief for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae urging reversal.Richard Ruda filed a brief for the National Governors' Association et al. as amici curiae urging affirmance.200federal-court action. He refiled his FELA suit in a South Carolina state court, and this is the case now before us.The state trial court dismissed Hilton's complaint on the ground that FELA does not authorize an action for money damages against an agency of the State, even if suit is maintained in a state forum. Though acknowledging that in Parden v. Terminal Railway of Alabama Docks Dept., supra, we interpreted FELA to permit those actions, the trial court said that Parden "has been severely limited by subsequent decisions of the Supreme Court." App. to Pet. for Cert. 22. The court held that Parden "is no longer good law," id., at 23, and ordered the action dismissed, whereupon Hilton appealed to the South Carolina Supreme Court.While his appeal was pending, the South Carolina Supreme Court decided Freeman v. South Carolina Public Railways Commission, 302 S. C. 51, 393 S. E. 2d 383 (1990). Addressing the same issue raised by this case, Freeman held that FELA does not subject States to liability in state-court suits. As did the trial court, the State Supreme Court acknowledged our Parden holding but concluded that in effect it had been overruled by our subsequent course of decisions.In Parden we held that FELA authorizes suits for damages against state-owned railroads, and that by entering the business of operating a railroad a State waives its Eleventh Amendment immunity from suit in federal court. The latter holding was overruled in Welch, to accord with our more recent Eleventh Amendment jurisprudence, 483 U. S., at 478; but the Welch Court was explicit in declining to decide whether in the Jones Act (or in FELA) Congress intended to create a cause of action against the States. Id., at 476, n. 6 (plurality opinion); see also id., at 495 (WHITE, J., concurring). In other words, the Welch decision did not disturb the statutory-construction holding of Parden.In addressing the latter issue, the South Carolina court found "dispositive" our decision in Will v. Michigan Dept. of State Police, 491 U. S. 58 (1989). Will was a suit brought in201state court under 42 U. S. C. § 1983 against Michigan state officials. We held that a State is not a "person" as that term is used in § 1983, and is not suable under the statute, regardless of the forum where the suit is maintained. In so holding, we relied in part on the lack of any "clear statement" in the statute of a congressional intent to impose liability on the State. In its Freeman decision that controlled its ruling in the instant case, the South Carolina court read Will to hold that a statute will not be interpreted to create a cause of action for money damages against a State unless it contains "unmistakably clear language" showing that Congress intended to do so. Deciding that the text of FELA does not have language conforming to this standard, the Freeman court held that FELA does not subject the States to liability.When petitioner's case reached the South Carolina Supreme Court, it affirmed dismissal of the action in a onesentence per curiam opinion, citing Freeman. We granted certiorari, 498 U. S. 1081 (1991), and now reverse.IIOur analysis and ultimate determination in this case are controlled and informed by the central importance of stare decisis in this Court's jurisprudence. Respondent asks us to overrule a 28-year-old interpretation, first enunciated in Parden, that when Congress enacted FELA and used the phrase "[e]very common carrier by railroad," 45 U. S. C. § 51, to describe the class of employers subject to its terms, it intended to include state-owned railroads. 377 U. S., at 187188.1 Just two Terms ago, in Port Authority Trans-Hudson Corp. v. Feeney, 495 U. S. 299 (1990), we assumed the applicability of FELA to state-owned railroads in finding that the defendant, a bistate compact corporation, had waived any1 Section 1 of FELA, 45 U. S. C. § 51, in pertinent part, provides:"Every common carrier by railroad while engaging in commerce ... shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce .... "202Eleventh Amendment immunity that it may have had. The issue here is whether we should reexamine this longstanding statutory construction. Because of the strong considerations favoring adherence to stare decisis in these circumstances, the answer to that question must be no. Time and time again, this Court has recognized that "the doctrine of stare decisis is of fundamental importance to the rule of law." Welch, supra, at 494; see also Patterson v. McLean Credit Union, 491 U. S. 164, 172 (1989); Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 406 (1932) (Brandeis, J., dissenting). Adherence to precedent promotes stability, predictability, and respect for judicial authority. Vasquez v. Hillery, 474 U. S. 254, 265-266 (1986). For all of these reasons, we will not depart from the doctrine of stare decisis without some compelling justification. Arizona v. Rumsey, 467 U. S. 203, 212 (1984).In the case before us the policies in favor of following stare decisis far outweigh those suggesting departure. "Considerations of stare decisis have special force in the area of statutory interpretation, for here, unlike in the context of constitutional interpretation, the legislative power is implicated, and Congress remains free to alter what we have done." Patterson, supra, at 172-173. Congress has had almost 30 years in which it could have corrected our decision in Parden if it disagreed with it, and has not chosen to do so. We should accord weight to this continued acceptance of our earlier holding. Stare decisis has added force when the legislature, in the public sphere, and citizens, in the private realm, have acted in reliance on a previous decision, for in this instance overruling the decision would dislodge settled rights and expectations or require an extensive legislative response. This is so in the case before us.Workers' compensation laws in many States specifically exclude railroad workers from their coverage because of the assumption that FELA provides adequate protection for those workers. See, e. g., Colo. Rev. Stat. §8-41-201 (Supp.2031990); D. C. Code Ann. § 36-301(9)(D) (1981); Ind. Code § 223-79(d) (Supp. 1991); La. Rev. Stat. Ann. § 23:1037 (West 1985); Neb. Rev. Stat. §48-106(1) (1988). Counsel for respondent in this case conceded during oral argument that petitioner may be precluded from seeking an alternative remedy under state law for his injuries, because of a like exclusion in South Carolina law. S. C. Code Ann. §42-1-350 (1976). Our overruling Parden would require these States to reexamine their statutes, meanwhile putting at risk all employees and employers who have been acting on the assumption that they are protected in the event of injuries caused by an employer's negligence. Overruling Parden would also throw into doubt previous decisions from this Court, cases holding that the entire federal scheme of railroad regulation applies to state-owned railroads. United States v. California, 297 U. S. 175 (1936) (Safety Appliance Act); California v. Taylor, 353 U. S. 553 (1957) (Railway Labor Act); see also Transportation Union v. Long Island R. Co., 455 U. S. 678, 688 (1982). These factors all weigh in favor of adhering to stare decisis, and we cannot find here sufficient, countervailing justifications for departing from our precedents.IIIRespondent argues that the Court has already considered and rejected these arguments for following stare decisis in Welch, 483 U. S., at 478. That is not accurate; and even if it were, Welch is not controlling here. The characterization of Welch is inaccurate because the most vital consideration of our decision today, which is that to confer immunity from state-court suit would strip all FELA and Jones Act protection from workers employed by the States, was not addressed or at all discussed in the Welch decision. Indeed, that omission can best be explained by the assumption, made express in the concurring opinion of JUSTICE WHITE, that204the Jones Act (and so too FELA 2) by its terms extends to the States. This coverage, and the jurisdiction of state courts to entertain a suit free from Eleventh Amendment constraints, is a plausible explanation for the absence in Welch of any discussion of the practical adverse effects of overruling that portion of Parden which pertained only to the Eleventh Amendment, since continued state-court jurisdiction made those effects minimal.Further, we cannot treat the holding of Welch as determinative of the issue now presented for our decision. As we explained in Welch, supra, at 471, our Eleventh Amendment cases do indeed hold that "Congress may abrogate the States' constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute." Atascadero State Hospital v. Scanlon, 473 U. S. 234, 242 (1985) (emphasis added). Congressional intent to abrogate Eleventh Amendment immunity must be expressed in the text of the statute; the Court will not look to legislative history in making its inquiry. Dellmuth v. Muth, 491 U. S. 223, 230 (1989). These cases establish a rule of constitutional law based on the Eleventh Amendment. That rule was developed after the Parden decision, and was found in Welch to have undercut the reasoning of Parden and to require Parden's Eleventh Amendment holding to be overruled. But as we have stated2 The specific statutory construction issue reserved in Welch was not the precise issue before the Court today, but rather whether the language of the Jones Act ("Any seaman who shall suffer personal injury in the course of his employment," 46 U. S. C. App. § 688) was correctly interpreted by the Court in Petty v. Tennessee-Missouri Bridge Comm'n, 359 U. S. 275, 282-283 (1959), to afford a remedy against the States. JUSTICE WHITE'S concurrence, Welch v. Texas Dept. of Highways and Public Transportation, 483 U. S., at 495, focused on this question, stating that "Congress has not disturbed this construction, and the Court, as I understand it, does not now purport to do so." The parties, however, agree that the resolution of this issue should be the same for the Jones Act and FELA. We thus assume so for the purposes of this decision.205on many occasions, "the Eleventh Amendment does not apply in state courts." Will, 491 U. S., at 63-64, citing Maine v. Thiboutot, 448 U. S. 1, 9, n. 7 (1980); Nevada v. Hall, 440 U. S. 410, 420-421 (1979).The issue becomes, then, a pure question of statutory construction, where the doctrine of stare decisis is most compelling. Respondent argues, and the state courts in this case said, that the statutory-construction holding of Parden is no longer good law because of our later opinion in Will, supra. Respondent would make the result in Will solely a function of our Eleventh Amendment jurisprudence, reading the case to adopt a per se rule prohibiting the interpretation of general liability language to include the States, absent a clear statement by Congress to the effect that Congress intends to subject the States to the cause of action. Respondent argues that in light of Will, the same considerations which led us to a partial overruling of Parden in Welch should govern here.We think the argument misconstrues the Will decision.Will did not import the entirety of our Eleventh Amendment jurisprudence into the area of statutory construction. It treated the Eleventh Amendment as a relevant consideration. 491 U. S., at 66-67; Hafer v. Melo, 502 U. S. 21, 30 (1991). The primary focus of Will was, as it should have been, on the language and history of § 1983. 491 U. S., at 64, 68-70; cf. Dellmuth v. Muth, supra, at 229-230. If Will had adopted a per se rule of the sort advocated by respondent, that entire discussion would have been unnecessary. The issue in Will and in this case is different from the issue in our Eleventh Amendment cases in a fundamental respect: The latter cases involve the application of a rule of constitutional law, while the former cases apply an "ordinary rule of statutory construction." Will, supra, at 65. This206conclusion is evident from our discussions in EEOC v. Wyoming, 460 U. S. 226, 244, n. 18 (1983), and in Gregory v. Ashcroft, 501 U. S. 452, 470 (1991), last Term. Both cases describe the plain statement rule as "a rule of statutory construction to be applied where statutory intent is ambiguous," ibid., rather than as a rule of constitutional law; and neither case implicated the Eleventh Amendment. The distinction we draw is also supported by the Court's decision in Welch, and in particular by the fact that Welch in explicit terms reserved the statutory construction issue we resolve today. 483 U. S., at 476, n. 6.When the issue to be resolved is one of statutory construction, of congressional intent to impose monetary liability on the States, the requirement of a clear statement by Congress to impose such liability creates a rule that ought to be of assistance to the Congress and the courts in drafting and interpreting legislation. The requirement also serves to make parallel two separate inquiries into state liability:Eleventh Amendment doctrine and canons of statutory interpretation. In most cases, as in Will and Gregory v. Ashcroft, the rule can be followed. The resulting symmetry, making a State's liability or immunity, as the case may be, the same in both federal and state courts, has much to commend it. It also avoids the federalism-related concerns that arise when the National Government uses the state courts as the exclusive forum to permit recovery under a congressional statute. This is not an inconsequential argument. Symmetry in the law is more than esthetics. It is predictability and order. But symmetry is not an imperative that must override just expectations which themselves rest upon the predictability and order of stare decisis.In the case before us the clear statement inquiry need not be made and we need not decide whether FELA satisfies that standard, for the rule in any event does not prevail over the doctrine of stare decisis as applied to a longstanding207statutory construction implicating important reliance interests. And when the rule is either overcome or inapplicable so that a federal statute does impose liability upon the States, the Supremacy Clause makes that statute the law in every State, fully enforceable in state court. Howlett v. Rose, 496 U. S. 356, 367-368 (1990).IVFor the reasons we have stated, the judgment of the South Carolina Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.It is so ordered

OCTOBER TERM, 1991SyllabusHILTON v. SOUTH CAROLINA PUBLIC RAILWAYS COMMISSIONCERTIORARI TO THE SUPREME COURT OF SOUTH CAROLINA No. 90-848. Argued October 8, 1991-Decided December 16, 1991Respondent South Carolina Public Railways Commission, a state agency that is a common carrier engaged in interstate commerce by railroad, was sued in state court under the Federal Employers' Liability Act (FE LA) by its employee, petitioner Hilton, who alleged that he was injured in the course of his employment as a result of the commission's negligence. In dismissing the complaint on the ground that FELA does not authorize a damages action against a state agency, even if suit is maintained in a state forum, the trial court acknowledged that in Parden v. Terminal Railway of Alabama Docks Dept., 377 U. S. 184, this Court interpreted FELA to permit such actions, but held that in effect Parden had been overruled by subsequent decisions of the Court. The South Carolina Supreme Court affirmed.Held: FELA creates a cause of action against a state-owned railroad, enforceable in state court. Pp.201-207.(a) Absent sufficient, countervailing justifications for departing from precedent, the strong considerations favoring adherence to stare decisis in this case compel the Court to reaffirm Parden insofar as it held, 377 U. S., at 187-188, that when Congress used the phrase "[e]very common carrier by railroad" to describe the class of employers subject to FELA's terms, it intended to include state-owned railroads. Weight must be accorded to the continued acceptance of the Parden holding by Congress, which has had almost 30 years in which to take corrective action if it disagreed with that holding, but has chosen not to do so. Moreover, overruling Parden would require an extensive legislative response by the many States, including South Carolina, that have specifically excluded railroad workers from workers' compensation coverage on the assumption that FELA adequately protects those workers in the event of injuries caused by an employer's negligence, and would dislodge the settled rights and expectations of employees and employers who have been acting on that assumption. Overruling Parden would also throw into doubt this Court's decisions holding that the entire federal scheme of railroad regulation applies to state-owned railroads. Pp.201-203.(b) Decisions subsequent to Parden do not require the Court to depart from stare decisis in this case. Welch v. Texas Dept. of Highways and Public Transportation, 483 U. S. 468, 478-which held that the198SyllabusJones Act, which incorporates FELA's remedial scheme, does not abrogate the States' Eleventh Amendment immunity from suit in federal court, ibid., but which explicitly reserved the question whether in that Act (or in FELA) Congress intended to create a cause of action against the States, id., at 476, n. 6 (plurality opinion); see also id., at 495 (WHITE, J., concurring)-cannot be characterized as having considered and rejected the aforementioned arguments for following stare decisis, since Welch neither addressed nor discussed the most vital consideration of today's decision: that to confer immunity from state-court suit would strip all FELA and Jones Act protection from state-employed workers. Further, the Welch holding cannot be treated as determinative of the issue here presented, since Welch's statement that Congress may abrogate the States' constitutionally secured immunity "only" by making its intention unmistakably clear in the statutory language, id., at 471, was made in the context of establishing a rule of constitutional law based on the Eleventh Amendment, which does not apply in state courts. Nor was Parden effectively overruled by Will v. Michigan Dept. of State Police, 491 U. S. 58, 65, which, in holding that a State is not a "person" suable under 42 U. S. C. § 1983, relied in part on the lack of any "clear statement" in the statute of a congressional intent to impose such liability. Will's "clear statement" rule is not a per se rule of constitutional law, but only an "ordinary rule of statutory construction," ibid. The issue in this case, as in Will, is a pure question of statutory construction, where the stare decisis doctrine is most compelling. Thus the clear statement inquiry need not be made here and the Court need not decide whether FELA satisfies that standard, for the rule in any event does not prevail over the stare decisis doctrine as applied to a longstanding statutory construction implicating important reliance interests. And when the clear statement rule is either overcome or inapplicable so that a federal statute does impose liability upon the States, the Supremacy Clause makes that statute the law in every State, fully enforceable in state courts. Pp. 203-207.Reversed and remanded.KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and WHITE, STEVENS, and SOUTER, JJ., joined. BLACKMUN, J., concurred in the judgment. O'CONNOR, J., filed a dissenting opinion, in which SCALIA, J., joined, post, p. 207. THOMAS, J., took no part in the consideration or decision of the case.Robert J. Beckham argued the cause and filed briefs for petitioner.199Full Text of Opinion

1968_306

MR. JUSTICE BLACK delivered the opinion of the Court.This case raises a variety of questions concerning the proper standards to be applied by a United States district court in passing on a motion for summary judgment in a civil antitrust action. Petitioner, Fortner Enterprises, Inc., filed this suit seeking treble damages and an injunction against alleged violations of §§ 1 and 2 of the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. §§ 1, 2. The complaint charged that respondents, United States Steel Corp. and its wholly owned subsidiary, the United States Steel Homes Credit Page 394 U. S. 497 Corp., had engaged in a contract, combination, and conspiracy to restrain trade and to monopolize trade in the sale of prefabricated houses. It alleged that there was a continuing agreement between respondents"to force corporations and individuals, including the plaintiff, as a condition to availing themselves of the services of United States Steel Homes Credit Corporation, to purchase at artificially high prices only United States Steel Homes. . . ."Specifically, petitioner claimed that, in order to obtain loans totaling over $2,000,000 from the Credit Corp. for the purchase and development of certain land in the Louisville, Kentucky, area, it had been required to agree, as a condition of the loans, to erect a prefabricated house manufactured by U.S. Steel on each of the lots purchased with the loan proceeds. Petitioner claimed that the prefabricated materials were then supplied by U.S. Steel at unreasonably high prices, and proved to be defective and unusable, thus requiring the expenditure of additional sums and delaying the completion date for the development. Petitioner sought treble damages for the profits thus lost, along with a decree enjoining respondents from enforcing the requirement of the loan agreement that petitioner use only houses manufactured by U.S. Steel.After pretrial proceedings in which a number of affidavits and answers to interrogatories were filed, the District Court entered summary judgment for respondents, holding that petitioner's allegations had failed to raise any question of fact as to a possible violation of the antitrust laws. Noting that the agreement involved here was essentially a tying arrangement, under which the purchaser was required to take a tied product -- here prefabricated homes -- as a condition of being allowed to purchase the tying product -- here credit, the District Judge held that petitioner had failed to establish the prerequisites of illegality under our tying cases, namely Page 394 U. S. 498 sufficient market power over the tying product and foreclosure of a substantial volume of commerce in the tied product. The Court of Appeals affirmed without opinion, and we granted certiorari, 393 U.S. 820 (1968). Since we find no basis for sustaining this summary judgment, we reverse and order that the case proceed to trial.We agree with the District Court that the conduct challenged here primarily involves a tying arrangement of the traditional kind. The Credit Corp. sold its credit only on the condition that petitioner purchase a certain number of prefabricated houses from the Homes Division of U.S. Steel. Our cases have made clear that, at least when certain prerequisites are met, arrangements of this kind are illegal in and of themselves, and no specific showing of unreasonable competitive effect is required. The discussion in Northern Pacific R. Co. v. United States, 366 U. S. 1, 366 U. S. 5-6 (1958), is dispositive of this question:"[T]here are certain agreements or practices which, because of their pernicious effect on competition and lack of any redeeming virtue, are conclusively presumed to be unreasonable, and therefore illegal, without elaborate inquiry as to the precise harm they have caused or the business excuse for their use. . . ."". . . Where [tying] conditions are successfully exacted, competition on the merits with respect to the tied product is inevitably curbed. Indeed, 'tying agreements serve hardly any purpose beyond the suppression of competition.' Standard Oil Co. of California v. United States, 337 U. S. 293, 337 U. S. 305-306. They deny competitors free access to the market for the tied product not because the party imposing the tying requirements has a better product or a lower price, but because of his power or leverage Page 394 U. S. 499 in another market. At the same time, buyers are forced to forego their free choice between competing products. For these reasons, 'tying agreements fare harshly under the laws forbidding restraints of trade.' Times-Picayune Publishing Co. v. United States, 345 U. S. 594, 345 U. S. 606. They are unreasonable in and of themselves whenever a party has sufficient economic power with respect to the tying product to appreciably restrain free competition in the market for the tied product and a 'not insubstantial' amount of interstate commerce is affected. International Salt Co. v. United States, 332 U. S. 392."(Footnote omitted.)Despite its recognition of this strict standard, the District Court held that petitioner had not even made out a case for the jury. The court held that respondents did not have "sufficient economic power" over credit, the tying product here, because, although the Credit Corp.'s terms evidently made the loans uniquely attractive to petitioner, petitioner had not proved that the Credit Corp. enjoyed the same unique attractiveness or economic control with respect to buyers generally. The court also held that the amount of interstate commerce affected was "insubstantial" because only a very small percentage of the land available for development in the area was foreclosed to competing sellers of prefabricated houses by the contract with petitioner. We think it plain that the District Court misunderstood the two controlling standards and misconceived the extent of its authority to evaluate the evidence in ruling on this motion for summary judgment.A preliminary error that should not pass unnoticed is the District Court's assumption that the two prerequisites mentioned in Northern Pacific are standards that petitioner must meet in order to prevail on the merits. On the contrary, these standards are necessary only to bring Page 394 U. S. 500 into play the doctrine of per se illegality. Where the standards were found satisfied in Northern Pacific and in International Salt Co. v. United States, 332 U. S. 392 (1947), this Court approved summary judgment against the defendants, but by no means implied that inability to satisfy these standards would be fatal to a plaintiff's case. A plaintiff can still prevail on the merits whenever he can prove, on the basis of a more thorough examination of the purposes and effects of the practices involved, that the general standards of the Sherman Act have been violated. Accordingly, even if we could agree with the District Court that the Northern Pacific standards were not satisfied here, the summary judgment against petitioner still could not be entered without further examination of petitioner's general allegations that respondents conspired together for the purpose of restraining competition and acquiring a monopoly in the market for prefabricated houses. And such an examination could rarely justify summary judgment with respect to a claim of this kind, for, as we said in Poller v. Columbia Broadcasting, 368 U. S. 464, 368 U. S. 473 (1962):"We believe that summary procedures should be used sparingly in complex antitrust litigation where motive and intent play leading roles, the proof is largely in the hands of the alleged conspirators, and hostile witnesses thicken the plot. It is only when the witnesses are present and subject to cross-examination that their credibility and the weight to be given their testimony can be appraised. Trial by affidavit is no substitute for trial by jury, which so long has been the hallmark of 'even-handed justice.'"(Footnote omitted.)We need not consider, however, whether petitioner is entitled to a trial on this more general theory, for it is clear that petitioner raised questions of fact which, if Page 394 U. S. 501 proved at trial, would bring this tying arrangement within the scope of the per se doctrine. The requirement that a "not insubstantial" amount of commerce be involved makes no reference to the scope of any particular market or to the share of that market foreclosed by the tie, and hence we could not approve of the trial judge's conclusions on this issue even if we agreed that his definition of the relevant market was the proper one. [Footnote 1] An analysis of market shares might become relevant if it were alleged that an apparently small dollar volume of business actually represented a substantial part of the sales for which competitors were bidding. But normally the controlling consideration is simply whether a total amount of business, substantial enough in terms of dollar volume so as not to be merely de minimis, is foreclosed to competitors by the tie, for, as we said in International Salt, it is "unreasonable per se to foreclose competitors from any substantial market" by a tying arrangement, 332 U.S. at 332 U. S. 396.The complaint and affidavits filed here leave no room for doubt that the volume of commerce allegedly foreclosed was substantial. It may be true, as respondents claim, that petitioner's annual purchases of houses from U.S. Steel under the tying arrangement never exceeded Page 394 U. S. 502 $190,000, while more than $500,000 in annual sales was involved in the tying arrangement held illegal in International Salt, but we cannot agree with respondents that a sum of almost $200,000 is paltry or "insubstantial." In any event, a narrow focus on the volume of commerce foreclosed by the particular contract or contracts in suit would not be appropriate in this context. As the special provision awarding treble damages to successful plaintiffs illustrates, Congress has encouraged private antitrust litigation not merely to compensate those who have been directly injured, but also to vindicate the important public interest in free competition. See Perma Life Mufflers v. International Parts Corp., 392 U. S. 134, 392 U. S. 138-139 (1968). For purposes of determining whether the amount of commerce foreclosed is too insubstantial to warrant prohibition of the practice, therefore, the relevant figure is the total volume of sales tied by the sales policy under challenge, not the portion of this total accounted for by the particular plaintiff who brings suit. In International Salt, the $500,000 total represented the volume of tied sales to all purchasers, and although this amount was directly involved because the case was brought by the Government against the practice generally, the case would have been no less worthy of judicial scrutiny if it had been brought by one individual purchaser who accounted for only a fraction of the $600,000 in tied sales. In the present case, the annual sales allegedly foreclosed by respondents' tying arrangements throughout the country totaled almost $4,000,000 in 1960, more than $2,800,000 in 1961, and almost $2,300,000 in 1962. These amounts could scarcely be regarded as insubstantial.The standard of "sufficient economic power" does not, as the District Court held, require that the defendant have a monopoly or even a dominant position throughout the market for the tying product. Our tie-in cases have made unmistakably clear that the economic power over Page 394 U. S. 503 the tying product can be sufficient even though the power falls far short of dominance and even though the power exists only with respect to some of the buyers in the market. See, e.g., International Salt; Northern Pacific; United States v. Loew's Inc., 371 U. S. 38 (1962). As we said in the Loew's case, 371 U.S. at 371 U. S. 45:"Even absent a showing of market dominance, the crucial economic power may be inferred from the tying product's desirability to consumers or from uniqueness in its attributes."These decisions rejecting the need for proof of truly dominant power over the tying product have all been based on a recognition that, because tying arrangements generally serve no legitimate business purpose that cannot be achieved in some less restrictive way, the presence of any appreciable restraint on competition provides a sufficient reason for invalidating the tie. Such appreciable restraint results whenever the seller can exert some power over some of the buyers in the market, even if his power is not complete over them and over all other buyers in the market. In fact, complete dominance throughout the market, the concept that the District Court apparently had in mind, would never exist even under a pure monopoly. Market power is usually stated to be the ability of a single seller to raise price and restrict output, for reduced output is the almost inevitable result of higher prices. Even a complete monopolist can seldom raise his price without losing some sales; many buyers will cease to buy the product, or buy less, as the price rises. Market power is therefore a source of serious concern for essentially the .same reason, regardless of whether the seller has the greatest economic power possible or merely some lesser degree of appreciable economic power. In both instances. despite the freedom of some or many buyers from the seller's power, other buyers -- whether few or many, whether scattered throughout the market or part of some group within the market -- Page 394 U. S. 504 can be forced to accept the higher price because of their stronger preferences for the product, and the seller could therefore choose instead to force them to accept a tying arrangement that would prevent free competition for their patronage in the market for the tied product. Accordingly, the proper focus of concern is whether the seller has the power to raise prices, or impose other burdensome terms such as a tie-in, with respect to any appreciable number of buyers within the market.The affidavits put forward by petitioner clearly entitle it to its day in court under this standard. A construction company president stated that competitors of U.S. Steel sold prefabricated houses and built conventional homes for at least $400 less than U.S. Steel's price for comparable models. Since, in a freely competitive situation, buyers would not accept a tying arrangement obligating them to buy a tied product at a price higher than the going market rate, this substantial price differential with respect to the tied product (prefabricated houses), in itself, may suggest that respondents had some special economic power in the credit market. In addition, petitioner's president, A. B. Fortner, stated that he accepted the tying condition on respondents' loan solely because the offer to provide 100% financing, lending an amount equal to the full purchase price of the land to be acquired, was unusually and uniquely advantageous to him. He found that no such financing was available to his corporation on any such cheap terms from any other source during the 1959-1962 period. His views on this were supported by the president of a finance company in the Louisville area, who stated in an affidavit that the type of advantageous financing plan offered by U.S. Steel"was not available to Fortner Enterprises or any other potential borrower from or through Louisville Mortgage Service Company or from Page 394 U. S. 505 or through any other lending institution or mortgage company to this affiant's knowledge during this period."We do not mean to accept petitioner's apparent argument that market power can be inferred simply because the kind of financing terms offered by a lending company are "unique and unusual." We do mean, however, that uniquely and unusually advantageous terms can reflect a creditor's unique economic advantages over his competitors. [Footnote 2] Since summary judgment in antitrust cases is disfavored, Poller, supra, the claims of uniqueness in this case should be read in the light most favorable to petitioner. They could well mean that U.S. Steel's subsidiary Credit Corp. had a unique economic ability to provide 100% financing at cheap rates. The affidavits show that, for a three- to four-year period, no other financial institution in the Louisville area was willing to match the special credit terms and rates of interest available from U.S. Steel. Since the possibility of a decline in property values, along with the difficulty of recovering full market value in a foreclosure sale, makes it desirable for a creditor to obtain collateral greater in value than the loan it secures, the unwillingness of competing financial institutions in the area to offer 100% financing probably reflects their feeling that they could not profitably lend money on the risks involved. U.S. Steel's subsidiary Credit Corp., on the other hand, may Page 394 U. S. 506 well have had a substantial competitive advantage in providing this type of financing because of economics resulting from the nationwide character of its operations. In addition, potential competitors such as banks and savings and loan associations may have been prohibited from offering 100% financing by state or federal law. [Footnote 3] Under these circumstances, the pleadings and affidavits sufficiently disclose the possibility of market power over borrowers in the credit market to entitle petitioner to go to trial on this issue.It may also be, of course, that these allegations will not be sustained when the case goes to trial. It may turn out that the arrangement involved here serves legitimate business purposes, and that U.S. Steel's subsidiary does not have a competitive advantage in the credit market. But, on the record before us, it would be impossible to reach such conclusions as a matter of law, and it is not our function to speculate as to the ultimate findings of fact. We therefore conclude that the showing made by petitioner was sufficient on the market power issue.Brief consideration should also be given to respondents' additional argument that, even if their unique kind of financing reflected economic power in the credit market, and even if a substantial volume of commerce was affected, the arrangement involving credit should not be held illegal under normal tie-in principles. In support of this, respondents suggest that every sale on credit in effect involves a tie. They argue that the offering of favorable credit terms is simply a form of price competition equivalent to the offering of a comparable reduction in the cash price of the tied product. Consumers should not, they say, be deprived of such Page 394 U. S. 507 advantageous services, and they suffer no harm because they can buy the tangible product with credit obtained elsewhere if the combined price of the seller's credit-product package is less favorable than the cost of purchasing the components separately.All of respondents' arguments amount essentially to the same claim -- namely, that this opinion will somehow prevent those who manufacture goods from ever selling them on credit. But our holding in this case will have no such effect. There is, at the outset of every tie-in case, including the familiar cases involving physical goods, the problem of determining whether two separate products are, in fact, involved. In the usual sale on credit, the seller, a single individual or corporation, simply makes an agreement determining when and how much he will be paid for his product. In such a sale, the credit may constitute such an inseparable part of the purchase price for the item that the entire transaction could be considered to involve only a single product. It will be time enough to pass on the issue of credit sales when a case involving it actually arises. Sales such as that are a far cry from the arrangement involved here, where the credit is provided by one corporation on condition that a product be purchased from a separate corporation, [Footnote 4] and where the borrower contracts to obtain a large sum of money over and above that needed to pay the seller for the physical products purchased. Whatever the standards for determining exactly when a transaction involves only a "single product," we cannot see how an arrangement such as that present in this case could ever be said to involve only a single product. Page 394 U. S. 508Nor does anything in respondents' arguments serve to distinguish credit from other kinds of goods and services, all of which may, when used as tying products, extend the seller's economic power to new markets and foreclose competition in the tied product. The asserted business justifications for a tie of credit are not essentially different from the justifications that can be advanced when the tying product is some other service or commodity. Although advantageous credit terms may be viewed as a form of price competition in the tied product, so is the offer of any other tying product on advantageous terms. In both instances, the seller can achieve his alleged purpose, without extending his economic power, by simply reducing the price of the tied product itself. [Footnote 5]The potential harm is also essentially the same when the tying product is credit. The buyer may have the choice of buying the tangible commodity separately, but, as in other cases, the seller can use his power over the tying product to win customers that would otherwise have constituted a market available to competing producers of the tied product. "[C]ompetition on the merits with respect to the tied product is inevitably curbed." Northern Pacific, 356 U.S. at 356 U. S. 6. Nor can it be assumed that, because the product involved is money needed to finance a purchase, the buyer would not have been able to purchase from anyone else without the seller's attractive credit. A buyer might have a strong preference for a seller's credit because it would eliminate the need for him to lay out personal funds, borrow from relatives, put up additional collateral, or obtain guarantors, Page 394 U. S. 509 but any of these expedients might have been chosen to finance a purchase from a competing producer if the seller had not captured the sale by means of his tying arrangement.In addition, barriers to entry in the market for the tied product are raised, since, in order to sell to certain buyers, a new company not only must be able to manufacture the tied product, but also must have sufficient financial strength to offer credit comparable to that provided by larger competitors under tying arrangements. If the larger companies have achieved economics of scale in their credit operations, they can, of course, exploit these economics legitimately by lowering their credit charges to consumers who purchase credit only, but economics in financing should not, any more than economics in other lines of business, be used to exert economic power over other products that the company produces no more efficiently than its competitors.For all these reasons, we can find no basis for treating credit differently in principle from other goods and services. Although money is a fungible commodity -- like wheat or, for that matter, unfinished steel -- credit markets, like other markets, are often imperfect, and it is easy to see how a big company with vast sums of money in its treasury could wield very substantial power in a credit market. Where this is true, tie-ins involving credit can cause all the evils that the antitrust laws have always been intended to prevent, crippling other companies that are equally, if not more, efficient in producing their own products. Therefore, the same inquiries must be made as to economic power over the tying product and substantial effect in the tied market, but where these factors are present, no special treatment can be justified solely because credit, rather than some other product, is the source of the tying leverage used to restrain competition. Page 394 U. S. 510The judgment of the Court of Appeals is reversed, and the case is remanded with directions to let this suit proceed to trial.Reversed

U.S. Supreme CourtFortner Enterprises, Inc. v. United States Steel Corp., 394 U.S. 495 (1969)Fortner Enterprises, Inc. v. United States Steel Corp.No. 306Argued January 23, 1969Decided April 7, 1969394 U.S. 495SyllabusPetitioner filed this action for treble damages and injunctive relief for alleged violations of §§ 1 and 2 of the Sherman Act by respondents, U.S. Steel Corp. and its wholly owned subsidiary, U.S. Steel Homes Credit Corp., alleging an agreement between respondents to force petitioner and others as a condition of obtaining credit on advantageous terms from Credit Corp. to purchase at artificially high prices prefabricated houses manufactured by U.S. Steel. Petitioner claimed that, in order for it to obtain over $2,000,000 in loans to buy and develop land in the Louisville, Ky., area, it was required to agree to erect. a U.S. Steel-fabricated house on each of the lots it bought with the loan proceeds. On the basis of its complaint and affidavits and answers to interrogatories filed in the course of pretrial proceedings, petitioner claimed that, during the 1959-1962 period involved, petitioner could find no other financing in the Louisville area at such cheap terms and on the 100% basis that Credit Corp. offered. The District Court, holding that petitioner's allegations had raised no question of fact as to a possible violation of the antitrust laws, entered summary judgment for respondents. The Court of Appeals affirmed.Held:1. The District Court incorrectly assumed that the standards in Northern Pacific R. Co. v. United States, 356 U. S. 1, for determining the illegality per se of a tying agreement had to be met before petitioner could prevail on the merits. Pp. 394 U. S. 498-500.2. In any event, the facts raised by petitioner, if proved at trial, make the per se doctrine applicable to the tying arrangement here. Pp. 394 U. S. 500-501.3. The volume of commerce allegedly foreclosed was substantial when measured as it should be, not by the portion of the total accounted for by petitioner's contracts, but by the total volume of sales tied by respondents' challenged sales policy. Pp. 394 U. S. 501-502.4. Economic power may be inferred from the seller's ability to raise prices, or impose other burdensome terms such as a tie-in, Page 394 U. S. 496 with respect to any appreciable number of buyers within the market, and does not require (as the District Court erroneously assumed) a showing of the seller's dominance over the market for the tying product. By this standard, in view of petitioner's showing that houses comparable to U.S. Steel's were sold by its competitors for substantially less and the lack of financing through other sources on terms Credit Corp. made available to petitioner, petitioner should have been allowed to go to trial on the market power issue. Pp. 394 U. S. 502-506.5. The arrangement here, where credit is provided by one corporation on condition that a product be purchased from another corporation, and where the borrower contracts to obtain a large sum of money beyond that needed to pay the seller for the physical products purchased, is readily distinguishable from the sale of a single product on credit by an individual seller. Pp. 394 U. S. 506-507.6. Where credit is the source of tying leverage used to restrain competition, it is treated no differently under the antitrust laws from other goods and services. Pp. 394 U. S. 508-509.404 F.2d 936, reversed and remanded.

1983_82-729

JUSTICE WHITE announced the judgment of the Court and delivered the opinion of the Court with respect to Part II-A, and an opinion with respect to Parts II-B, II-C, and II-D, in which THE CHIEF JUSTICE, JUSTICE REHNQUIST, and JUSTICE O'CONNOR join.The Constitution expressly empowers Congress to "provide for the Punishment of counterfeiting the Securities and current Coin of the United States." U.S.Const., Art. I, § 8, cl. 6. Pursuant to that authority, Congress enacted two statutes that together restrict the use of photographic reproductions of currency. 18 U.S.C. § 474, � 6, and 18 U.S.C. § 504. The Federal District Court for the Southern District of New York held that those two statutes violate the First Amendment. Appellants ask us to overturn that judgment.ITitle 18 U.S.C. § 474 was enacted during the Civil War to combat the surge in counterfeiting caused by the great increase in Government obligations issued to fund the war and the unsettled economic conditions of the time. See United States v. Raynor, 302 U. S. 540, 302 U. S. 544-546 (1938). The sixth paragraph of that section provides criminal liability for anyone who"prints, photographs, or in any other manner makes or executes any engraving, photograph, print, or impression Page 468 U. S. 644 in the likeness of any . . . obligation or other security [of the United States] or any part thereof. . . . [Footnote 1]"This complete ban on the use of photographic reproductions of currency remained without statutory exception for almost a century. However, during that time, the Treasury Department developed a practice of granting special permission to those who wished to use certain illustrations of paper money for legitimate purposes. In 1958, Congress acted to codify that practice by amending [Footnote 2] 18 U.S.C. § 504 so as to permit the"printing, publishing, or importation . . . of illustrations of . . . any . . . obligation or other security of the United States . . . for philatelic, numismatic, educational, historical, or newsworthy purposes in articles, books, journals, newspapers, or albums. . . ."18 U.S.C. § 504 (1). In order to "prevent any possibility of the illustration's being used as an instrument of fraud," S.Rep. No. 2446, 85th Cong., 2d Sess., 5 (1958) (hereafter S.Rep. No. 2446); H.R.Rep. No. 1709, 85th Cong., 2d Sess., 3 (1958) (hereafter H.R.Rep. No. 1709), and in an effort to avoid creating conditions which would "facilitate counterfeiting," S.Rep. No. 2446, at 5-6; H.R.Rep. No. 1709, at 3, Congress also adopted three restrictions that the Treasury Department normally imposed on those who were granted special permission to create and use such photographs. First, the illustrations Page 468 U. S. 645 had to be in black and white. Second, they had to be undersized or oversized, i.e., less than three-fourths or more than one and one-half the size of the original. And third, the negative and plates used in making the illustrations had to be destroyed after their final authorized use. [Footnote 3] Therefore, under the present statutory scheme, a person may make photographic reproductions of currency without risking criminal liability if the reproductions meet the purpose (numismatic, Page 468 U. S. 646 philatelic, educational, historical, or newsworthy), publication (articles, books, journals, newspapers, or albums), color (black and white), and size (less than three-fourths or more than one and one-half of the size of the original) requirements of § 504(1), and if the negatives and plates are destroyed immediately after use.Over the course of the past two decades, Time, Inc., the publisher of several popular magazines, has been advised by Secret Service agents that particular photographic reproductions of currency appearing in its magazines violated the provisions of §§ 474 and 504. Despite the warnings, Time continued to use such reproductions. When the front cover of the February 16, 1981, issue of Sports Illustrated carried a photographic color reproduction of $100 bills pouring into a basketball hoop, a Secret Service agent informed Time's legal department that the illustration violated federal law, and that it would be necessary for the Service to seize all plates and materials used in connection with the production of the cover. The agent also asked for the names and addresses of all the printers who prepared the cover and requested an interview with a member of Time's management. Ten days later, Time initiated the present action against the Secretary of the Treasury, the Director of the Secret Service, and others, [Footnote 4] seeking a declaratory judgment that §§ 474, � 6, and 504 were unconstitutional on their face and as applied to Time, as well as an injunction preventing the defendants from enforcing or threatening to enforce the statutes.On cross-motions for summary judgment, the District Court ruled in favor of Time. 539 F. Supp. 1371 (SDNY 1982). The court first determined that Time's use of the illustrations was speech protected by the First Amendment. It then held that § 474 could not, by itself, pass constitutional Page 468 U. S. 647 muster because, although it was enacted to protect the Government's compelling interest in preventing counterfeiting, it was overbroad.The court concluded that the exceptions permitted by § 504 did not save the blanket prohibition, because that section presented constitutional problems of its own. Focusing on the requirements that the illustration appear in an article, book, journal, newspaper, or album and that it be used for philatelic, numismatic, educational, historical, or newsworthy purposes, the court held that § 504 could not be sustained as a valid time, place, and manner regulation, because it required the Government to make distinctions based on content or subject matter. The court also determined that the purpose and publication restrictions were unconstitutionally vague, observing that"[t]he determination of what is 'philatelic, numismatic, educational, historical, or newsworthy' is rife with assumption and open to varying interpretation,"and that "[t]he definition of a journal, newspaper or album is anyone's game to play." 539 F. Supp. at 1390. The court thus concluded that both § 474, � 6, and § 504 were unconstitutional.Appellants sought review of the District Court's decision by invoking this Court's appellate jurisdiction under 28 U.S.C. § 1252. We noted probable jurisdiction, 459 U.S. 1198 (1983), in order to determine whether the two statutes could survive constitutional scrutiny.IIThe District Court correctly observed that,"[b]ecause of the interrelationship of Sections 474 and 504, the ultimate constitutional analysis must be directed to the impact of these sections in tandem."539 F. Supp. at 1385. The exceptions outlined in § 504 apply "[n]otwithstanding any other provision of this chapter," including § 474. The criminal liability imposed by § 474 therefore applies only when a photographic reproduction fails to meet the requirements imposed by § 504. Thus, if the restrictions imposed by § 504 Page 468 U. S. 648 sufficiently accommodate Time's First Amendment interests, both statutes must be upheld. We accordingly begin our inquiry by focusing on the restrictions imposed by § 504.AAppellants assert that the restrictions imposed by § 504 are valid as reasonable time, place, and manner regulations. In order to be constitutional, a time, place, and manner regulation must meet three requirements. First, it "may not be based upon either the content or subject matter of speech.'" Heffron v. International Society for Krishna Consciousness, Inc., 452 U. S. 640, 452 U. S. 648 (1981) (quoting Consolidated Edison Co. v. Public Service Comm'n of N.Y., 447 U. S. 530, 447 U. S. 536 (1980)). Second, it must "`serve a significant governmental interest.'" 452 U.S. at 452 U. S. 649 (quoting Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 425 U. S. 771 (1976)). And third, it must "'leave open ample alternative channels for communication of the information.'" 452 U.S. at 452 U. S. 648 (quoting Virginia Pharmacy Board, supra, at 425 U. S. 771). The District Court concluded that the purpose requirement of § 504 could not be sustained as a valid time, place, and manner regulation, because it discriminates on the basis of content. We agree.A determination concerning the newsworthiness or educational value of a photograph cannot help but be based on the content of the photograph and the message it delivers. Under the statute, one photographic reproduction will be allowed and another disallowed solely because the Government determines that the message being conveyed in the one is newsworthy or educational, while the message imparted by the other is not. The permissibility of the photograph is therefore often "dependent solely on the nature of the message being conveyed." Carey v. Brown, 447 U. S. 455, 447 U. S. 461 (1980). Regulations which permit the Government to discriminate on the basis of the content of the message cannot be Page 468 U. S. 649 tolerated under the First Amendment. Id. at 447 U. S. 463; Police Department of Chicago v. Mosley, 408 U. S. 92, 408 U. S. 95-96 (1972). The purpose requirement of § 504 is therefore constitutionally infirm. [Footnote 5]BThe District Court also concluded on vagueness and other grounds that limiting the exemption from the § 474 ban to likenesses of currency contained in "publications" was itself invalid. We do not address that issue, however, because there is no evidence or suggestion that Time, a publisher of magazines, has ever, or will ever, have any difficulty in meeting that requirement. [Footnote 6] The validity of the publication Page 468 U. S. 650 requirement, standing alone, is therefore of only academic interest to Time. This Court, as a matter of both constitutional limitation and prudential restraint, does not sit to resolve issues that are of only passing concern to the parties. Time nevertheless contends that the publication requirement renders the statute overbroad and subject to challenge by a publisher such as Time. Kolender v. Lawson, 461 U. S. 352, 461 U. S. 358-359, n. 8 (1983); New York v. Ferber, 458 U. S. 747, 458 U. S. 768-769 (1982); Schaumburg v. Citizens for a Better Environment, 444 U. S. 620, 444 U. S. 634 (1980); Broadrick v. Oklahoma, 413 U. S. 601, 413 U. S. 612-616 (1973); Thornhill v. Alabama, 310 U. S. 88, 310 U. S. 98 (1940). The essence of Time's argument seems to be that, even if publishers may constitutionally be required to conform to the other requirements of § 504, that section is overbroad because it unconstitutionally precludes nonpublishers from making reproductions of currency even though they meet the other requirements of the statute. However, such an overbreadth challenge can be raised on behalf of others only when the statute is substantially overbroad, i.e., when the statute is unconstitutional in a substantial portion of the cases to which it applies. New York v. Ferber, supra, at 458 U. S. 770; Broadrick v. Oklahoma, supra, at 413 U. S. 615. How often the publication requirement will Page 468 U. S. 651 be used to prevent a person from utilizing an otherwise legitimate photograph is not clear from the record before us. In describing the noncounterfeiting uses to which photographic reproductions of currency could be put, the House and Senate Committees referred only to situations in which publications were involved. [Footnote 7] In light of the paucity of evidence to the contrary, [Footnote 8] we may assume that the legitimate reach of Page 468 U. S. 652 § 504 "dwarfs its arguably impermissible applications" to nonpublishers. New York v. Ferber, supra, at 458 U. S. 773. Therefore, invocation of the overbreadth doctrine is unavailing to Time.CThe District Court concluded that, because the purpose and publication requirements were unconstitutional, the entire regulatory scheme outlined in § 504 was invalid. This was error. First, as noted in Part II-B, the validity of the publication requirement is not an issue that can properly be addressed in this case. More importantly, even if both requirements were unconstitutional, it does not automatically follow that the entire statute must fail. [Footnote 9]In exercising its power to review the constitutionality of a legislative Act, a federal court should act cautiously. A ruling of unconstitutionality frustrates the intent of the elected representatives of the people. Therefore, a court should refrain from invalidating more of the statute than is necessary. As this Court has observed,"whenever an act of Congress contains unobjectionable provisions separable from those found to be unconstitutional, it is the duty of this court to so declare, and to maintain the act in so far as it is valid."El Paso & Northeastern R. Co. v. Gutierrez, 215 U. S. 87, 215 U. S. 96 Page 468 U. S. 653 (1909). Thus, this Court has upheld the constitutionality of some provisions of a statute even though other provisions of the same statute were unconstitutional. Buckley v. Valeo, 424 U. S. 1, 424 U. S. 108 (1976); United States v. Jackson, 390 U. S. 570, 390 U. S. 585-591 (1968); El Paso & Northeastern R. Co., supra, at 215 U. S. 96. See also Griffin v. Breckenridge, 403 U. S. 88, 403 U. S. 104 (1971). For the same reasons, we have often refused to resolve the constitutionality of a particular provision of a statute when the constitutionality of a separate, controlling provision has been upheld. Champlin Refining Co. v. Corporation Comm'n of Oklahoma, 286 U. S. 210, 286 U. S. 234-235 (1932); Southwestern Oil Co. v. Texas, 217 U. S. 114, 217 U. S. 120-121 (1910); Field v. Clark, 143 U. S. 649, 143 U. S. 695-696 (1892). Before invalidating the entire statute, we should therefore determine whether the remaining provisions of § 504 can survive in the absence of the purpose requirement.Whether an unconstitutional provision is severable from the remainder of the statute in which it appears is largely a question of legislative intent, but the presumption is in favor of severability."'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.'"Buckley v. Valeo, supra, at 424 U. S. 108 (quoting Champlin Refining Co. v. Corporation Comm'n of Oklahoma, supra, at 286 U. S. 234). Accord, United States v. Jackson, supra, at 390 U. S. 585. Utilizing this standard, we are quite sure that the policies Congress sought to advance by enacting § 504 can be effectuated even though the purpose requirement is unenforceable.One of the main purposes of the 1958 version of § 504 was to relieve the Treasury Department of the burden of processing numerous requests for special permission to use photographic reproductions of currency. The legislation was designed to"obviate the necessity of obtaining special permission from the Secretary of the Treasury in each case where the use of . . . illustrations [of currency was] desired."S.Rep. No. 2446, at 6; H.R.Rep. No. 1709, at 4. At the same time, Page 468 U. S. 654 Congress was aware that, in granting requests in the past, the Secretary had imposed size and color limitations in order "[t]o prevent any possibility of the illustrations being used as an instrument of fraud." S.Rep. No. 2446, at 5; H.R.Rep. No. 1709, at 3. Congress determined that the easiest way to ease the administrative burden without undermining the Government's efforts to prevent counterfeiting was to codify the then-existing practice, relying heavily on the Treasury Department's opinion that "the printing in publications of black-and-white illustrations of paper money . . . restricted in size will not facilitate counterfeiting." S.Rep. No. 2446, at 5-6; H.R.Rep. No. 1709, at 3. This congressional desire to ease the administrative burden without hindering the Government's efforts to enforce the counterfeiting laws can be achieved even if the purpose requirement is eliminated from the statute. [Footnote 10] There is no indication that Congress believed Page 468 U. S. 655 that the purpose requirement either significantly eased the Treasury Department's burden or was necessary to prevent the exception from being used as a means of circumventing the counterfeiting laws. Thus, if the size and color limitations are constitutional, [Footnote 11] Congress' intent can in large measure be fulfilled without the purpose requirement. We therefore examine the size and color restrictions in light of the First Amendment interests asserted by Time.DIn considering the validity of the color and size limitations, we once again begin with appellants' contention that the requirements are sustainable as reasonable time, place, and manner regulations. Unlike the purpose requirement, the Page 468 U. S. 656 size and color limitations do not discriminate on the basis of content. Compliance with the color and size requirements does not prevent Time from expressing any view on any subject or from using illustrations of currency in expressing those views. More importantly, the Government does not need to evaluate the nature of the message being imparted in order to enforce the color and size limitations. Those limitations restrict only the manner in which the illustrations can be presented. They are thus similar to the decibel level restrictions upheld by this Court in Kovacs v. Cooper, 336 U. S. 77 (1949), and the size and height limitations on outdoor signs upheld by other courts, Baldwin v. Redwood City, 540 F.2d 1360, 1368-1369 (CA9 1976), cert. denied sub nom. Leipzig v. Baldwin, 431 U.S. 913 (1977); Temple Baptist Church, Inc. v. City of Albuquerque, 98 N.M. 138, 146, 646 P.2d 565, 573 (1982); Krych v. Village of Burr Ridge, 111 Ill.App.3d 461, 464-466, 444 N.E.2d 229, 232-233 (1982). Therefore, the size and color limitations pass the first of the three requirements of a valid time, place, and manner regulation.The size and color limitations also meet the second requirement, in that they effectively serve the Government's concededly compelling interest in preventing counterfeiting. Time contends that, although the color restriction serves the Government's interest in preventing counterfeiting, it is nonetheless invalid because it is not narrow enough. Time asserts that the color restriction applies to an illustration of currency regardless of its capacity to deceive, and is thus broader than is necessary to achieve the Government's interest in preventing counterfeiting. However, Time places too narrow a construction on the Government's interest and too heavy a burden.on those enacting time, place, and manner regulations. The Government's interest in preventing the color photographic reproduction of currency is not limited to its desire to prevent would-be counterfeiters from utilizing the illustration itself. The requirement that the illustration be in Page 468 U. S. 657 black and white is also designed to make it harder for counterfeiters to gain access to negatives that could easily be altered and used for counterfeiting purposes. Only one negative and plate is required for black-and-white printing. On the other hand, the color printing process requires multiple negatives and plates. This increases a counterfeiter's access to the negatives and plates, and enables him to more easily use them for counterfeiting purposes under the guise of a legitimate project. In opposing a recent bill designed to eliminate the color restriction, a Treasury Department official noted these concerns, stating that"[t]he size restriction alone does not address the problem of widespread possession of color separation negatives, nor does it impact upon the availability of a ready-made alibi for the possessors."Statement of the Honorable Robert E. Powis, Deputy Assistant Secretary of the Treasury, before the Subcommittee on Criminal Justice, House Judiciary Committee on H.R. 4275, reprinted in App. D to Juris.Statement 43a. It is therefore sufficiently evident that the color limitation serves the Government's interest in a substantial way. That the limitations may apply to some photographs that are themselves of no use to counterfeiters does not invalidate the legislation. The less restrictive alternative analysis invoked by Time has never been a part of the inquiry into the validity of a time, place, and manner regulation. It is enough that the color restriction substantially serves the Government's legitimate ends. [Footnote 12] Page 468 U. S. 658The propriety of the size limitation is even clearer. The size limitation is a reasonable and sufficiently precise way of ensuring that the illustrations themselves do not have the capacity to deceive the unwary and inattentive. Indeed, Time does not advance any serious challenge to the legitimacy of that requirement.The color and size limitations are therefore reasonable manner regulations [Footnote 13] that can constitutionally be imposed on Page 468 U. S. 659 those wishing to publish photographic reproductions of currency. Because the provisions of § 474 are of real concern only when the limitations of § 504 are not complied with, § 474 is also constitutional.IIIThe District Court correctly determined that the purpose requirement of § 504 is unconstitutional. [Footnote 14] However, it erred in failing to consider the validity of the remaining portions of the statute that applied to Time. Because the color and size limitations are valid, neither § 474 nor § 604 is unconstitutional on its face or as applied to Time. [Footnote 15] The judgment of the District Court is accordingly affirmed with respect to the purpose requirement and reversed with respect to the color and size limitations.It is so ordered

U.S. Supreme CourtRegan v. Time, Inc., 468 U.S. 641 (1984)Regan v. Time, Inc.No. 82-729Argued November 9, 1983Decided July 3, 1984468 U.S. 641SyllabusTitle 18 U.S.C. § 474 makes it a crime to photograph any obligation or other security of the United States. But 18 U.S.C. § 504(1) permits the printing or publishing of illustrations of any such obligation or other security"for philatelic, numismatic, educational, historical, or newsworthy purposes in articles, books, journals, newspapers, or albums"if the illustrations are in black and white and less than three-fourths or more than one and one-half the size of the original and if the negative and plates used in making the illustrations are destroyed after their final authorized use. Appellee magazine publisher, after being warned that it was violating §§ 474 and 504 by publishing a photographic color reproduction of United States currency on the cover of one of its magazines, brought an action in Federal District Court seeking a declaratory judgment that the statutes were unconstitutional on their face and as applied to appellee, and an injunction preventing their enforcement. The District Court, ruling in appellee's favor, held that the statutes violated the First Amendment.Held: The judgment is affirmed in part and reversed in part.539 F. Supp. 1371, affirmed in part and reversed in part.JUSTICE WHITE delivered the opinion of the Court with respect to Part II-A, concluding that § 504's purpose requirement is unconstitutional. It cannot be sustained as a valid time, place, and manner regulation because it discriminates on the basis of content in violation of the First Amendment. A determination as to the newsworthiness or educational value of a photograph cannot help but be based on the content of the photograph and the message it delivers. Under § 504, one photographic reproduction will be allowed and another disallowed solely because the Government determines that the message in one is newsworthy or educational, but the message in the other is not. Pp. 468 U. S. 648-649.JUSTICE WHITE, joined by THE CHIEF JUSTICE, JUSTICE REHNQUIST, and JUSTICE O'CONNOR, delivered an opinion with respect to Parts II-B, II-C, and II-D, concluding that:1. The issue of the validity of § 504's publication requirement on vagueness or overbreadth grounds cannot properly be addressed. There is no evidence that appellee has ever, or will ever, have difficulty Page 468 U. S. 642 meeting that requirement, and therefore its validity is of only academic interest to appellee. And where it is not clear from the record that the requirement will be used to prevent a person from utilizing an otherwise legitimate photograph, appellee publisher cannot claim that the statute is overbroad because it unconstitutionally precludes nonpublishers from making reproductions of currency even though they meet the statute's other requirements. Pp. 468 U. S. 649-652.2. The fact that § 504's purpose requirement is unconstitutional does not automatically render the statute's entire regulatory scheme invalid. Whether an unconstitutional provision is severable from the remainder of a statute is largely a question of legislative intent, but the presumption is in favor of severability. Here, it appears that the policies Congress sought to advance by enacting § 504 -- to ease the administrative burden without hindering the Government's efforts to enforce the counterfeiting laws -- can be effectuated even though the purpose requirement is unenforceable. Pp. 468 U. S. 652-655.3. Section 504's size and color requirements are valid as reasonable manner regulations that can constitutionally be imposed on those wishing to publish photographic reproductions of currency. Compliance with these requirements does not prevent appellee from expressing any view on any subject or from using illustrations of currency in expressing these views. Moreover, the Government does not need to evaluate the nature of the message imparted in order to enforce the requirements, since they restrict only the manner in which the illustrations can be presented. Such requirements also effectively serve the Government's compelling interest in preventing counterfeiting. Because the provisions of § 474 are of real concern only when § 504's requirements are not complied with, § 474 is also constitutional. Pp. 468 U. S. 655-659.JUSTICE STEVENS, concluding that § 504's purpose requirement is constitutional, also concluded that the statute's size and color requirements are permissible methods of minimizing the risk of fraud as well as counterfeiting, and can have only a minimal impact on appellee's ability to communicate effectively. Pp. 468 U. S. 697-704.WHITE, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Part II-A, in which BURGER, C.J., and BRENNAN, MARSHALL, REHNQUIST, and O'CONNOR, JJ., joined, and an opinion with respect to Parts II-B, II-C, and II-D, in which BURGER, C.J., and REHNQUIST and O'CONNOR, JJ., joined. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL, J., joined, post, p. 468 U. S. 659. POWELL, J., filed an opinion concurring in part and dissenting in part, in which BLACKMUN, J., joined, post, p. 468 U. S. 691. STEVENS, Page 468 U. S. 643 J., filed an opinion concurring in the judgment in part and dissenting in part,post, p. 468 U. S. 692.

1970_25

MR. JUSTICE DOUGLAS delivered the opinion of the Court.This case involves six groups of claims to oil shale located in Colorado and asserted under the General Mining Act of 1872, 17 Stat. 91, now 30 U.S.C. §§ 22, 26, 28, and 29. Section 28 provides that, until a patent issued, "not less than $100 worth of labor shall be performed or improvements made during each year." [Footnote 1] And § 29 Page 400 U. S. 50 provides that a patent to the claim could issue on a showing that the claimant had expended $500 worth of labor or improvements on the claim. These claims are not patented, and were canceled in the early 1930's on the ground that the amount of labor or improvements specified in § 28 had not been made "during each year." [Footnote 2] Some of the claimants in this case applied for patents between 1955 and 1962. The General Land Office rejected the patent applications because the claims had been canceled. On appeal, the Secretary of the Interior, acting through the Solicitor, ruled that these cancellations were effective, later judicial determinations of the invalidity of the grounds for cancellation notwithstanding. Union Oil Co., 71 I.D. 169. [Footnote 3] These claimants then sought an order to compel the Department to issue the patents. They argued that the Land Office was without authority to cancel the claims when it did, and that the Secretary of the Interior had nullified all the contest proceedings in 1935. In the alternative, they sought judicial review of those contest rulings. Respondent Oil Shale Corp. commenced this action in the District Court, not to require the Secretary to Page 400 U. S. 51 issue a patent, but to expunge the rulings of the Secretary canceling the claims and to enjoin him from enforcing them. All the cases were consolidated for trial in the District Court. The District Court granted the relief, 261 F. Supp. 954, and the Court of Appeals affirmed, 406 F.2d 759, both holding that cancellations for lack of assessment work were void because the Department did not have jurisdiction over the subject matter. The case is here on petition for certiorari, which we granted to consider whether Wilbur v. Krushnic, 280 U. S. 306, and Ickes v. Virginia-Colorado Development Corp., 295 U. S. 639, had been correctly construed and applied to invalidate the Secretary's action in protection of the public domain.Before we come to a consideration of the Krushnic and Virginia-Colorado cases, it should be noted that, in 1920, Congress by enacting § 21 of the Mineral Lands Leasing Act, 41 Stat. 445, 30 U.S.C. § 241(a), completely changed the national policy over the disposition of oil shale lands. Thereafter, such lands were no longer open to location and acquisition of title, but only to lease. But § 37 contained a Saving Clause which covered "valid claims existent on February 25, 1920, and thereafter maintained in compliance with the laws under which initiated, which claims may be perfected under such laws, including discovery." 30 U.S.C. § 193. Respondents contend that their claims fall within that exception.Respondents assert that a like claim was recognized and approved in the Krushnic case. In that case, however, labor in the statutory amount had been performed, including the aggregate amount of $500. The only default was in the failure to perform labor for one year during the period. Mandamus for the issuance of a patent was directed, the Court saying:"Prior to the passage of the Leasing Act, annual performance of labor was not necessary to preserve Page 400 U. S. 52 the possessory right, with all the incidents of ownership . . . as against the United States, but only as against subsequent relocators. So far as the government was concerned, failure to do assessment work for any year was without effect. Whenever $500 worth of labor in the aggregate had been performed, other requirements aside, the owner became entitled to a patent, even though, in some years, annual assessment labor had been omitted."280 U.S. at 280 U. S. 317.The Court further held that the claims were "maintained" within the Saving Clause of the Leasing Act by a resumption of the assessment work before a challenge of the claim by the United States had intervened.Virginia-Colorado also involved claims on which labor had been expended except for one year. It was alleged, however, that the claimant had planned to resume the assessment work but for the Secretary's adverse action, and that the claims had not been abandoned. The Court held that the claims had been "maintained" within the meaning of the Saving Clause of the Leasing Act of 1920.Those two cases reflect a judicial attitude of fair treatment for claimants who have substantially completed the assessment work required by 30 U.S.C. § 28. There are, however, dicta both in Virginia-Colorado and in Krushnic that the failure to do assessment work gives the Government no ground for forfeiture, but inures only to the benefit of relocators.Indeed, 30 U.S.C. § 28, which derives from the 1872 Act, as already noted, [Footnote 4] provides that, upon the failure to do the assessment work, "the claim or mine upon Page 400 U. S. 53 which such failure occurred shall be open to relocation in the same manner as if no location of the same had ever been made," provided the assessment work has not been "resumed" upon the claim "after failure and before such location." It is therefore argued that, so far as the 1872 Act is concerned, the failure to do the assessment work concerns not the Government, but only "rival or adverse claimants." [Footnote 5]The problem in those two cases and the present one concerns the Saving Clause in the Leasing Act, which, as noted, makes available for patent "valid claims existent on February 25, 1920, and thereafter maintained in compliance with the laws under which initiated." Concededly, failure to maintain a claim made it "subject to disposition only" by leasing by the United States. See § 37 of the 1920 Act, 30 U.S.C. § 193. Hence, if we assume, arguendo, that failure to do assessment work as provided in the 1872 Act concerned at the time only the claimant and any subsequent relocator, the United States, speaking through the Secretary of the Interior, became a vitally interested party by reason of the 1920 Act. For it was by that Act that Congress reclaimed portions of the public domain so that land might be disposed of by a different procedure (leasing) to the same end (oil shale production [Footnote 6]) or devoted to wholly Page 400 U. S. 54 different purposes [Footnote 7] within the purview of public policy as determined by Congress.It appears that, shortly before 1920, oil shale claims were affected by a speculative fever. Then came a period of calm. By the late forties and continuing into the sixties, speculators sought out the original locators or their heirs, obtained quitclaim deeds from them, and thereupon eliminated all other record titleholders by performing assessment work for one year. [Footnote 8] It appears that 94 of the 98 claims involved in the present litigation were of that character. There is nothing reprehensible in the practice, if the procedure is one which Congress has approved. But the command of the 1872 Act is that assessment work of $100 be done "during each year," and the Saving Clause of § 37 of the 1920 Act requires that, for lands to escape the leasing requirement, the claims must be "maintained in compliance with the laws under which initiated."The legislative history of the 1872 Act does not throw much light on the problem. Senator Cole, proponent of that Act, explained, however, that the requirement of assessment work was made to adopt the Spanish law, which granted mining titles but subjected them "to what they term denouncement of the title or defeasance of the title upon a failure to work the mine after a certain Page 400 U. S. 55 time." Cong.Globe, 42d Cong., 2d Sess., 2459 (1872). While the objective of the 1872 Act was to open the lands "to a beneficial use by some other party" once the original claimant defaulted, the defeasance inevitably accrued to the United States, owner of the fee. On that premise, it would seem that the dicta in Krushnic and in Virginia-Colorado are not valid.The history of the 1920 Act throws a little light on the problem.In the Senate, there was considerable debate over the addition of the words "including discovery" at the end of § 37, which contains the Saving Clause."Mr. JONES of New Mexico. Suppose we use the words 'including discovery.'""Mr. SMOOT. Very well; if the Senator desires to insert the words 'including discovery,' I shall offer no objection.""Mr. WALSH of Montana. Mr. President, I was going to say to Senators that, to my mind, discovery does not necessarily perfect the claim, because the claimant would not be entitled to a patent unless he had performed $500 worth of work, and, in a just sense, his claim would not be protected.""Mr. SMOOT. The words 'under such laws' cover everything -- the $500 worth of work, discovery and everything else.""Mr. WALSH of Montana. But the words 'including discovery,' now proposed, it seems to me, will make it plain.""Mr. SMOOT. I have no objection to those words going in the bill."58 Cong.Rec. 4584. [Footnote 9] Page 400 U. S. 56The "perfection" of the claims "under such laws" thus seemingly meant compliance with "everything" under 30 U.S.C. § 28, which, taken literally, would mean assessment work of $100 "during each year."If we were to hold, to the contrary, that enforcement of the assessment work of § 28 was solely at the private initiative of relocators, the "maintenance" provision of § 37 becomes largely illusory, because relocation of oil shale claims became impossible after the 1920 Act. So if enforcement of the assessment work requirement of § 28 were dependent solely on the activities and energies of oil shale relocators, there was no effective enforcement device. While the area covered by the claims might possibly be relocated for wholly different purposes, the likelihood was so remote that the Court of Appeals concluded that: "The old claims were thus sheltered by the [1920] Act." 406 F.2d at 763. That meant that a claim could remain immune from challenge by anyone with or without any assessment work, in complete defiance of the 1872 Act.The Court concluded in Virginia-Colorado that the lapse in assessment work was no basis for a charge of abandonment. 295 U.S. at 295 U. S. 645-646. We construe that statement to mean that, on the facts of that case, failure to do the assessment work was not sufficient to establish abandonment. But it was well established that the failure to do assessment work was evidence of abandonment. Union Oil Co. v. Smith, 249 U. S. 337, 249 U. S. 349; Donnelly v. United States, 228 U. S. 243, 228 U. S. 267. If, in fact, a claim had been abandoned, then the relocators were not the only ones interested. The United States had an interest in retrieving the lands. See G. Widman, T. Brightwell, & J. Haggard, Legal Study of Oil Shale on Public Lands 189-193 (1969). The policy of leasing oil shale lands under the 1920 Act gave the United States a Page 400 U. S. 57 keen interest in recapturing those which had not been "maintained" within the meaning of § 37 of that Act. We agree with the Court in Krushnic and Virginia-Colorado that every default in assessment work does not cause the claim to be lost. Defaults, however, might be the equivalent of abandonment; and we now hold that token assessment work, or assessment work that does not substantially satisfy the requirements of 30 U.S.C. § 28, is not adequate to "maintain" the claims within the meaning of § 37 of the Leasing Act. To hold otherwise would help defeat the policy that made the United States, as the prospective recipient of royalties, a beneficiary of these oil shale claims. We cannot support Krushnic and Virginia-Colorado on so broad a ground. Rather, their dicta to the contrary, we conclude that they must be confined to situations where there had been substantial compliance with the assessment work requirements of the 1872 Act, so that the "possessory title" of the claimant, granted by 30 U.S.C. § 26, will not be disturbed on flimsy or insubstantial grounds.Unlike the claims in Krushnic and Virginia-Colorado, the Land Commissioner's findings indicate that the present claims had not substantially met the conditions of § 28 respecting assessment work. Therefore, we cannot say that Krushnic and Virginia-Colorado control this litigation. We disagree with the dicta in these opinions that default in doing the assessment work inures only to the benefit of relocators, as we are of the view that § 37 of the 1920 Act makes the United States the beneficiary of all claims invalid for lack of assessment work or otherwise. It follows that the Department of the Interior had, and has, subject matter jurisdiction over contests involving the performance of assessment work. We conclude therefore that the judgments below must be reversed.Respondents rely upon the response of the Department of the Interior to the Virginia-Colorado case in Page 400 U. S. 58 which the Secretary declared the contest in that case to be "void." He also declared that "other Departmental decisions in conflict with this decision are hereby overruled." Shale Oil Co., 55 I.D. 287, 290. This decision, they argue, nullified the previous contest proceedings in which their claims were voided. Moreover, they contend that this administrative rule of 35 years, upon which the Department itself has relied, may not now be retroactively changed. In addition, they claim that these contest decisions, if still valid, are subject to direct judicial review at this time, testing both substantive and procedural errors, such as lack of notice. [Footnote 10]These contentions present questions not decided below. Therefore, on remand, all issues relevant to the current validity of those contest proceedings will be open, including the availability of judicial review at this time. To the extent that they are found void, not controlling, or subject to review, all issues relevant to the invalidity of the claims will be open, including inadequate assessment work, abandonment, fraud, and the like. Likewise, all issues concerning the time, amount, and nature of the assessment work will be open so that the claimants will have an opportunity to bring their claims within the narrow ambit of Krushnic and Virginia-Colorado, as we have construed and limited these opinions.Reversed

U.S. Supreme CourtHickel v. Oil Shale Corp., 400 U.S. 48 (1970)Hickel v. Oil Shale Corp.No. 25Argued October 22, 1970Decided December 8, 1970400 U.S. 48SyllabusThe General Mining Act of 1872 provided that, until a patent issued for a mineral location on lands belonging to the United States "not less than $100 worth of labor shall be performed or improvements made during each year," and that a patent could issue on a showing that the claimant had expended $500 of labor or improvements on the claim. Failure to do the assessment work generally entitled others to relocate the claim. Under the Mineral Lands Leasing Act of 1920, lands theretofore open to location and acquisition of title became available only on a lease basis, but a Saving Clause covered valid claims existent on February 25, 1920, "and thereafter maintained in compliance with the laws under which initiated." All the claims involved in this suit were canceled by the Secretary of the Interior in the early 1930's because the annual assessment work, required by the 1872 Act, had not been performed. In attempting to establish their oil shale claims in Colorado under the 1872 Act, respondents brought this action in the District Court to require the Secretary of the Interior to patent the claims or to expunge his rulings canceling the claims for lack of annual assessment work and to enjoin him from enforcing them. The District Court and the Court of Appeals, ruling in favor of respondents, held that the Department of the Interior had no jurisdiction to cancel the claims. The courts relied on Wilbur v. Krushnic, 280 U. S. 306, and Ickes v. Virginia-Colorado Development Corp., 295 U. S. 639, where this Court declined to interpret the Mineral Leasing Act as requiring the return to the Government of full possessory rights to lands subject to oil shale claims for defaults in assessment work. The decisions indicated that failure to perform such work made the claims subject to relocation by others but not forfeiture to the Government.Held: The Saving Clause of the Mineral Leasing Act makes the United States the beneficiary of all claims that are invalid for lack of assessment work or otherwise, and the Department of the Interior had subject matter jurisdiction to determine whether respondents' claims were "maintained" within the meaning of that clause, including the performance Page 400 U. S. 49 of adequate assessment work. Krushnic, supra, and Virginia-Colorado, supra, must be confined to situations where there has been substantial compliance with the assessment work. Pp. 400 U. S. 51-58.406 F.2d 759, reversed and remanded.DOUGLAS, J., delivered the opinion of the Court, in which BLACK, BRENNAN, and BLACKMUN, JJ., joined. BURGER, C.J., and STEWART, J., filed a dissenting statement, post, p. 400 U. S. 61. HARLAN, WHITE, and MARSHALL, JJ., took no part in the consideration or decision of the case.

1973_72-1231

MR. JUSTICE DOUGLAS delivered the opinion of the Court.The National Labor Relations Board, acting pursuant to § 9(c) of the National Labor Relations Act, as Page 414 U. S. 271 amended, 61 Stat. 144, [Footnote 1] 129 U.S.C. § 159(c), conducted an election by secret ballot among the production and maintenance employees of respondent at the request of the Mechanics Educational Society of America (hereafter Union). Under the Act, [Footnote 2] the Union, if it wins the election, becomes "the exclusive representative of all the employees" in that particular unit for purposes of collective bargaining. The Union won the election by a vote of 22-20.Respondent filed objections to the election, but, after an evidentiary hearing, a hearing officer found against respondent and the Board certified the Union as the representative of the employees in that unit. Respondent. however, refused to bargain. The Union thereupon filed Page 414 U. S. 272 an unfair labor practice charge with the General Counsel, who issued a complaint alleging that respondent had violated §§ 8(a)(1) and (5) of the Act. [Footnote 3] The Board sustained the allegations and ordered respondent to bargain with the Union. 194 N.L.R.B. 298. The Court of Appeals denied enforcement of the order. 470 F.2d 305. We granted the petition for certiorari, 411 U.S. 964, there apparently being a conflict between this decision in the Sixth Circuit and a decision in the Eighth Circuit, NLRB v. DIT-MCO, Inc., 428 F.2d 775, and also with one in the Ninth Circuit, NLRB v. G. K. Turner Associates, 457 F.2d 484. We affirm.It appeared that, prior to the election, "recognition slips" were circulated among employees. An employee who signed the slip before the election [Footnote 4] became a member Page 414 U. S. 273 of the Union and would not have to pay what at times was called an "initiation fee" and at times a "fine." If the Union was voted in, those who had not signed a recognition slip would have to pay. Page 414 U. S. 274The actual solicitation of signatures on the "recognition slips" was not done by Union officials. Union officials, however, explained to employees at meetings that those who signed the slips would not be required to pay an initiation fee, while those who did not would have to pay. Those officials also picked out some five employees to do the soliciting, and authorized them to explain the Union's initiation fee policy. Those solicited were told that there would be no initiation fee charged those who signed the slip before the election. Under the bylaws of the Union, an initiation fee apparently was not to be higher than $10, but the employees who testified at the hearing (1) did not know how large the fee would be and (2) said that their understanding was that the fee was a "fine" or "assessment." Page 414 U. S. 275One employee, Donald Bridgeman, testified that he signed the slip to avoid paying the "fine" if the Union won. He got the message directly from an employee picked by the Union to solicit signatures on the "slips." So did Thomas Rice, another employee.The Board originally took the position that pre-election solicitation of memberships by a union with a promise to waive the initiation fee of the union was not consistent with a fair and free choice of bargaining representatives. Lobue Bros., 109 N.L.R.B. 1182. Later in DIT-MCO, Inc., 163 N.L.R.B. 1019, the Board explained its changed position as follows:"We shall assume, arguendo, that employees who sign cards when offered a waiver of initiation fees do so solely because no cost is thus involved; that they, in fact, do not at that point really want the union to be their bargaining representative. The error of the Lobue premise can be readily seen upon a review of the consequences of such employees casting votes for or against union representation. Initially, it is obvious that employees who have received or been promised free memberships will not be required to pay an initiation fee, whatever the outcome of the vote. If the union wins the election, there is, by postulate, no obligation; and if the union loses, there is still no obligation, because compulsion to pay an initiation fee arises under the Act only when a union becomes the employees' representative and negotiates a valid union security agreement. Thus, whatever kindly feeling toward the union may be generated by the cost-reduction offer, when consideration is given only to the question of initiation fees, it is completely illogical to characterize as improper inducement or coercion to Page 414 U. S. 276 vote 'Yes' a waiver of something that can be avoided simply by voting 'No.'""The illogic of Lobue does not become any more logical when other consequences of a vote for representation are considered. Thus, employees know that, if a majority vote for the union, it will be their exclusive representative, and, provided a valid union security provision is negotiated, they will be obliged to pay dues as a condition of employment. Thus, viewed solely as a financial matter, a 'no' vote will help to avoid any subsequent obligations, a 'yes' may well help to incur such obligations. In these circumstances, an employee who did not want the union to represent him would hardly be likely to vote for the union just because there would be no initial cost involved in obtaining membership. Since an election resulting in the union's defeat would entail not only no initial cost, but also insure that no dues would have to be paid as a condition of employment, the financial inducement, if a factor at all, would be in the direction of a vote against the union, rather than for it."Id. at 1021-1022.We are asked to respect the expertise of the Board on this issue, giving it leeway to alter or modify its policy in light of its ongoing experience with the problem. The difficulty is not in that principle, but with the standards to govern the conduct of elections under § 9(c)(1)(A). We said in NLRB v. Tower Co., 329 U. S. 324, 329 U. S. 330, that the duty of the Board was to establish "the procedure and safeguards necessary to insure the fair and free choice of bargaining representatives by employees."It is, of course, true, as we said in NLRB v. Wyman-Gordon Co., 394 U. S. 759, 394 U. S. 767, that "Congress granted the Board a wide discretion to ensure the fair and Page 414 U. S. 277 free choice of bargaining representatives." See also NLRB v. Waterman S.S. Co., 309 U. S. 206, 309 U. S. 226. But in this case, two opposed groups are in contention: one composed of those who want a union, and the other of those who prefer not to have one. The Board in its DIT-MCO opinion says "it is completely illogical to characterize as improper inducement or coercion" a waiver of initiation fees for those who vote "yes" when the whole problem can be avoided by voting "no." 163 N.L.R.B. at 1021-1022. But the Board's analysis ignores the realities of the situation.Whatever his true intentions, an employee who signs a recognition slip prior to an election is indicating to other workers that he supports the union. His outward manifestation of support must often serve as a useful campaign tool in the union's hands to convince other employees to vote for the union, if only because many employees respect their coworkers' views on the unionization issue. By permitting the union to offer to waive an initiation fee for those employees signing a recognition slip prior to the election, the Board allows the union to buy endorsements and paint a false portrait of employee support during its election campaign.That influence may well have been felt here for, as noted, [Footnote 5] there were 28 who signed up with the Union before the election petition was filed with the Board, and either seven or eight more who signed up before the election. We do not believe that the statutory policy of fair elections prescribed in the Tower case permits endorsements, whether for or against the union, to be bought and sold in this fashion.In addition, while it is correct that the employee who signs a recognition slip is not legally bound to vote for the union and has not promised to do so in any formal Page 414 U. S. 278 sense, certainly there may be some employees who would feel obliged to carry through on their stated intention to support the union. And on the facts of this case, the change of just one vote would have resulted in a 21-21 election, rather than a 22-20 election.Any procedure requiring a "fair" election must honor the right of those who oppose a union, as well as those who favor it. The Act is wholly neutral when it comes to that basic choice. By § 7 of the Act, employees have the right not only to "form, join, or assist" unions, but also the right "to refrain from any or all of such activities." 29 U.S.C. § 157. An employer who promises to increase the fringe benefits by $10 for each employee who votes against the union, if the union loses the election, would cross the forbidden line under our decisions. See NLRB v. Exchange Parts Co., 375 U. S. 405. The right of employees to "form, join, or assist" labor unions guaranteed by § 7 has an express sanction in § 8(a)(1), which makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees" in the exercise of those rights. 29 U.S.C. § § 157, 158(a)(1). Such interference is an unfair labor practice, as we held in NLRB v. Exchange Parts Co., supra. But, as already noted, § 7 guarantees the right of employees "to refrain from any or all of such activities."Congress has also listed in § 8(b) of the Act "unfair" labor practices of unions. 29 U.S.C. § 158(b). There is no explicit provision which makes "interference" by a union with the right of an employee to "refrain" from union activities an unfair labor practice.Section 8(c), however, provides:"The expressing of any views, argument, or opinion, or the dissemination thereof, whether, in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this subchapter if such expression contains no threat Page 414 U. S. 279 of reprisal or force or promise of benefit."29 U.S.C. § 158(c) (emphasis added).Whether it would be an "unfair" labor practice for a union to promise a special benefit to those who sign up for a union seems not to have been squarely resolved. [Footnote 6] The right of a free choice is, however, inherent in the principles reflected in § 9(c)(1)(A).When the dissent says that "[t]he special inducement is to sign the card, not to vote for the union," and that treating the two choices as one is untenable, it overlooks cases like NLRB v. Gissel Packing Co., 395 U.S. Page 414 U. S. 280 575. There, we held that the gathering of authorization cards from a majority of the employees in the bargaining unit may entitle the union to represent the employees for collective bargaining purposes, even though there has been and will be no election, id. at 395 U. S. 582-583, and that rejection of that authorization by the employer is an unfair labor practice. Where the solicitation of cards is represented as being solely for the purpose of obtaining an election, a contrary result is indicated. Id. at 395 U. S. 584, 385 U. S. 606. Thus, the solicitation of authorization cards may serve one of two ends. Of course, when an election is contemplated, an employee does not become a member of the union merely by signing a card. But, prior to the election, if the union receives overwhelming support, the pro-union group may decide to treat the union authorization cards as authorizing it to conduct collective bargaining without an election. The latent potential of that alternative use of authorization cards cautions us to treat the solicitation of authorization cards in exchange for consideration of fringe benefits granted by the union as a separate step protected by the same kind of moral standard that governs elections themselves.The Board, in its supervision of union elections, may not sanction procedures that cast their weight for the choice of a union and against a nonunion shop or for a nonunion shop and against a union.In the Exchange Parts case, we said that, although the benefits granted by the employer were permanent and unconditional, employees were"not likely to miss the inference that the source of benefits now conferred is also the source from which future benefits must flow and which may dry up if it is not obliged."375 U.S. at 375 U. S. 409. If we respect, as we must, the statutory right of employees to resist efforts to unionize a plant, we cannot assume that unions exercising powers are wholly benign towards their antagonists, whether they be nonunion Page 414 U. S. 281 protagonists or the employer. The failure to sign a recognition slip may well seem ominous to nonunionists who fear that, if they do not sign, they will face a wrathful union regime should the union win. That influence may well have had a decisive impact in this case, where a change of one vote would have changed the result.Affirmed

U.S. Supreme CourtNLRB v. Savair Mfg. Co., 414 U.S. 270 (1973)National Labor Relations Board v. Savair Manufacturing Co.No. 72-1231Argued November 12, 1973Decided December 17, 1973414 U.S. 270SyllabusA labor union's offer to waive initiation fees for all employees who sign union authorization cards before a certification election under the National Labor Relations Act interferes with the employees' right to refrain from union activities guaranteed by § 7 of the Act, does not comport with the principle of "fair and free choice of bargaining representatives by employees" that is inherent in § 9(c)(1)(A), NLRB v. Tower Co., 329 U. S. 324, and is ground for denying enforcement of an order against the employer to bargain with the union after it wins the election. Pp. 414 U. S. 275-281.470 F.2d 305, affirmed.DOUGLAS, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, MARSHALL, POWELL, and REHNQUIST, JJ., joined. WHITE, J., filed a dissenting opinion, in which BRENNAN and BLACKMUN, JJ., joined, post, p. 414 U. S. 281.

1976_74-6632

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.We granted certiorari in this case to decide whether a federal parolee imprisoned for a crime committed while on parole is constitutionally entitled to a prompt parole revocation hearing when a parole violator warrant is issued and lodged with the institution of his confinement but not served on him. [Footnote 1] Page 429 U. S. 80(1)In 1962, petitioner was convicted in the United States District Court for the District of Arizona of the crime of rape on an Indian reservation, in violation of 18 U.S.C. $ 1153. There was no appeal, and petitioner received a 10-year prison sentence. He was paroled in 1966, with almost six years remaining to be served. While on parole, petitioner shot and killed two persons on the Fort Apache Indian Reservation. He was convicted on a guilty plea of manslaughter as to one victim and second-degree murder as to the other, for violations of 18 U.S.C. $ 1153; he received concurrent 10-year sentences for these two offenses. These crimes constituted obvious violations of the terms of petitioner's 1966 parole. See 18 U.S.C. $ 4203(a) (1970 ed. and Supp. V).Soon after petitioner's incarceration for the two homicides, the United States Board of Parole issued, but did not execute, a parole violator warrant; this was lodged with prison officials as a "detainer." [Footnote 2] Petitioner requested the Board to execute Page 429 U. S. 81 the warrant immediately so that any imprisonment imposed for violation of his earlier parole under the rape conviction could run concurrently with his 1971 homicide sentences. The Board replied that it intended to execute the warrant only upon petitioner's release from his second sentence. At its 1974 annual review of petitioner's case, the Board reaffirmed its decision to allow the warrant to remain unexecuted.Relying on Morrissey v. Brewer, 408 U. S. 471 (1972), petitioner began this federal habeas corpus action in January, 1975, seeking dismissal of the parole violator warrant on the ground that he had been denied a prompt hearing at which the pending parole revocation issues could be aired.The District Court dismissed the petition without awaiting a responsive pleading, stating:"[A] parole revocation hearing is not required until the parole violator warrant has been executed. The parole board is under no obligation to execute the warrant, inasmuch as petitioner has been in custody on his 1971 manslaughter [and murder] sentence[s] since the time the warrant was issued and filed as a detainer against him. [Footnote 3]"The Court of Appeals affirmed, relying on its earlier holding in Small v. Britton, 500 F.2d 299 (CA10 1974), in which that court had held that an incarcerated parolee is deprived of no liberty interest by the lodging of a detainer against him, and is thus entitled to no due process safeguards unless and until the parole violator warrant is actually executed. Page 429 U. S. 82(2)The Parole Commission and Reorganization Act, Pub.L. 94-233, 90 Stat. 219 et seq., was enacted shortly after we granted certiorari. The Act renamed the Board the Parole Commission and made other changes in federal parole procedures, principally to codify the Board's existing practices. [Footnote 4] Throughout the progress of this case below, however, parole revocation procedures were controlled by the former statutes, 18 U.S.C. §§ 4205 and 4207. [Footnote 5] Under them, and the Board's own regulations, 28 CFR § 2.53 (1975), [Footnote 6] it was the Board's practice to issue a parole violator warrant as a matter Page 429 U. S. 83 of course whenever a federal parolee was convicted of a new offense. Under the former statute and regulations, if the subsequent sentence called for incarceration, the warrant was lodged at the institution of confinement as a detainer, for possible later service. A parolee so confined was then notified of the issuance of the unserved warrant and given the opportunity to make a written response. Upon receipt of the response, the Board was authorized, in its discretion, to conduct a dispositional interview designed to get the facts relevant to its revocation decision. The parolee could retain counsel for the interview and call witnesses. In lieu of an interview, the Board, in its discretion, could review the parolee's case based on the record and the written response.After review -- or interview -- the Board had three options for disposing of its parole violator warrant:"(a) It could execute the warrant immediately and take the parolee into custody. If parole was revoked at that Page 429 U. S. 84 stage, the remainder of the parolee's original federal sentence, reinstated by the parole revocation, would run concurrently with the subsequent sentence from the time of execution of the warrant. 18 U.S.C. § 4205. Execution of the warrant deprived the parolee of any good-time credits he might have previously earned on his original sentence under 18 U.S.C. § 4161, and of credit for the time spent while on parole. 18 U.S.C. § 4205; 28 CFR § 2.51 (1975).""(b) The Board's second option was to dismiss the warrant and detainer altogether, which operated as a decision not to revoke parole, and under which the parolee retained both his good-time credit and credit for the time spent on parole. Presumably dismissal of the warrant would reflect a Board decision that the violation of conditions of parole was not of such gravity as to justify revocation.""(c) Third, the Board was free to defer a final decision on parole revocation until expiration of the subsequent sentence, as it elected to do in this case; under this third option, the Board was authorized to execute the warrant, take the parolee into custody immediately upon his release, and then conduct a revocation hearing. Deferral of decision while permitting the warrant to stand unexecuted would operate to allow the original sentence to remain in the status it occupied at the time of the asserted parole violation, 18 U.S.C. § 4205; it would not deprive the parolee either of his good time or of the time spent on parole."Respondent represents that the Board's general practice, before passage of the 1976 Act, was to defer decision in order to have before it the parolee's institutional record during his confinement on the subsequent offense. That record would obviously be highly relevant to the parole revocation decision. Annual reviews of the status of every parolee to whom it had not granted a dispositional interview were conducted under the former statute.The 1976 Act and accompanying regulations, 28 CFR § 2.1 Page 429 U. S. 85 et seq. (1976), incorporate the former procedures with few modifications. Under current law, the Parole Commission reviews the parole violator warrant within 180 days of its issuance, 18 U.S.C. § 4214(b)(1) (1976 ed.); the parolee, after notification of the impending review, is now entitled to assistance of appointed counsel, if requested, in preparing his written response. 18 U.S.C. § 4214(a)(2)(B) (1976 ed.). The 1976 Act also abolishes the annual status review formerly required. Previously it was general practice to defer execution of the warrant to completion of the subsequent sentence. It is now firm Commission policy that, unless "substantial mitigating circumstances" are shown, the parole violator term of a parolee convicted of crime is to run consecutively to the sentence imposed for the subsequent offense. 28 CFR § 2.47(c) (1976).Petitioner asserts protected liberty interests in both the length and conditions of his confinement. Those interests, he argues, are disregarded in several respects by issuance against him of an unexecuted parole violator warrant, which bars him from serving his 1962 rape conviction sentence concurrently with his 1971 homicide sentences, retards his parole eligibility on the later convictions, and adversely affects his prison classification status. He argues that lack of a prompt hearing risks the loss of evidence in mitigation which might induce the Board not to revoke his parole. Respondent's position is that, whatever process may eventually be due petitioner, the mere issuance of a parole violator warrant works no present deprivation of protected liberty sufficient to invoke due process protection.(3)In Morrissey, we held that the conditional freedom of a parolee generated by statute is a liberty interest protected by the Due Process Clause of the Fourteenth Amendment which may not be terminated absent appropriate due process safeguards. Page 429 U. S. 86 The revocation hearing mandated by Morrissey [Footnote 7] is bottomed on the parallel interests of society and the parolee in establishing whether a parole violation has occurred and, if so, whether, under all the circumstances, the quality of that violation calls for parole revocation. The issue before us here, however, is not whether a Morrissey-type hearing will ever be constitutionally required in the present case, [Footnote 8] but whether a hearing must be held at the present time, before the parolee is taken into custody as a parole violator. We hold that there is no requirement for an immediate hearing.Petitioner's present confinement and consequent liberty loss derive not in any sense from the outstanding parole violator warrant, but from his two 1971 homicide convictions. Issuance of the warrant and notice of that fact to the institution of confinement did no more than express the Board's intent to defer consideration of parole revocation to a later time. Page 429 U. S. 87 Though the gravity of petitioner's subsequent crimes places him under a cloud, issuance of the warrant was not a determination that petitioner's parole under his 1962 rape conviction will be revoked; the time at which the Commission must make that decision has not yet arrived. With only a prospect of future incarceration which is far from certain, we cannot say that the parole violator warrant has any present or inevitable effect upon the liberty interests which Morrissey sought to protect. Indeed, in holding that "[t]he revocation hearing must be tendered within a reasonable time after the parolee is taken into custody," Morrissey, 408 U.S. at 408 U. S. 488, we established execution of the warrant and custody under that warrant as the operative event triggering any loss of liberty attendant upon parole revocation. This is a functional designation, for the loss of liberty as a parole violator does not occur until the parolee is taken into custody under the warrant. Cf. 18 U.S.C. § 4206; 18 U.S.C. § 4213(d) (1976 ed.).The other injuries petitioner claims to suffer either do not involve a loss of protected liberty or have not occurred by reason of the warrant and detainer. His real complaint is that he desires to serve his sentence for the 1962 rape conviction concurrently with his sentences for two 1971 homicides. But, as we have noted, even after completion of the homicide sentences, the Commission retains full discretion to dismiss the warrant or decide, after hearing, that petitioner's parole need not be revoked. If revocation is chosen, the Commission has power to grant, retroactively, the equivalent of concurrent sentences and to provide for unconditional or conditional release upon completion of the subsequent sentence. See 18 U.S.C. §§ 4211, 4214(d) (1976 ed.); 28 CFR §§ 2.21, 2.52(c)(2) (1976). Thus, deferral of the revocation decision does not deprive petitioner of any such opportunity; Page 429 U. S. 88 nothing in the statute or regulations gives him any "right" to force the decision of the Commission at this time.Petitioner also argues that issuance of a parole violator warrant, without more, diminishes his opportunity for parole on his intervening sentence. Assuming for the moment that granting of parole is a protected liberty interest which this warrant impinges, this argument fails to take into account that here the same Commission which will consider petitioner's parole under his 1971 homicide convictions will decide whether to revoke parole granted under the 1962 conviction. The statutory hearing to which petitioner will be entitled upon his application for release on parole will give him the same full opportunity to persuade the Commission that he should be released from federal custody as would an immediate hearing on the parole violator warrant. Whether different issues would be presented by the prospect of adverse action by different and autonomous parole authorities we need not consider.Petitioner further claims that evidence of mitigation may be lost if the revocation hearing is not held promptly, but he makes no claim that there is additional evidence in his case which may be vitiated by a delay. Had such claims been made, the Commission has the power, as did the Board before it, to conduct an immediate hearing at which petitioner can preserve his evidence. 18 U.S.C. § 4214(b)(2) (1976 ed.); 28 CFR § 2.47 (1976). Page 429 U. S. 89Finally, there is practical aspect to consider, for in cases such as this, in which the parolee admits or has been convicted of an offense plainly constituting a parole violation, the only remaining inquiry is whether continued release is justified notwithstanding the violation. This is uniquely a "prediction as to the ability of the individual to live in society without committing antisocial acts." Morrissey, supra at 408 U. S. 480. In making this prophecy, a parolee's institutional record can be perhaps one of the most significant factors. Forcing decision immediately after imprisonment would not only deprive the parole authority of this vital information, but since the other most salient factor would be the parolee's recent convictions, here a double homicide, a decision to revoke parole would often be foreordained. Given the predictive nature of the hearing, it is appropriate that such hearing be held at the time at which prediction is both most relevant and most accurate -- at the expiration of the parolee's intervening sentence.Accordingly, and without regard to what process may be due petitioner before his parole may be finally revoked, we hold that he has been deprived of no constitutionally protected rights simply by issuance of a parole violator warrant. The Commission therefore has no constitutional duty to provide petitioner an adversary parole hearing until he is taken into custody as a parole violator by execution of the warrant.Affirmed

U.S. Supreme CourtMoody v. Daggett, 429 U.S. 78 (1976)Moody v. DaggettNo. 74-6632Argued October 12, 1976Decided November 15, 1976429 U.S. 78SyllabusPetitioner federal parolee, imprisoned for federal crimes committed while on parole and clearly constituting parole violations, held not to be constitutionally entitled to an immediate parole revocation hearing, where a parole violator warrant was issued and lodged with the institution of his confinement as a "detainer," but was not executed. Pp. 429 U. S. 85-89.(a) Petitioner's present confinement and consequent liberty loss do not derive from the parole violator warrant, but from his convictions for the crimes committed while on parole. Execution of a parole violator warrant and custody thereunder are the operative events triggering any loss of liberty attendant upon parole revocation. Morrissey v. Brewer, 408 U. S. 471, 408 U. S. 488. Pp. 429 U. S. 85-87.(b) Deferral of the parole revocation decision until execution of the parole violator warrant does not deprive petitioner of the opportunity to serve any sentence imposed for parole violation concurrently with the sentences imposed for the crimes committed while on parole, since, if the Parole Commission chooses to revoke parole, it has the power to grant, retroactively, the equivalent of concurrent sentences, and to provide for unconditional or conditional release upon completion of the subsequent sentences. Pp. 429 U. S. 87-88.(c) Issuance of the parole violator warrant, without more, did not diminish petitioner's opportunity for parole on his intervening sentences, since the same Commission that will consider such parole will decide whether to revoke parole granted under the earlier conviction, and since the statutory hearing to which petitioner will be entitled upon his application for parole will give him the same opportunity to persuade the Commission that he should be released from custody as would an immediate hearing on the parole violator warrant. P. 429 U. S. 88.(d) As a practical matter, in cases such as this, in which the parolee has been convicted of an offense plainly constituting a parole violation, a decision to revoke parole would often be foreordained, so that, given the predictive nature of the parole revocation hearing, it is appropriate that such hearing be held at the time at which prediction as to the parolee's ability to live in society without committing antisocial Page 429 U. S. 79 acts is both most relevant and most accurate -- at the expiration of the parolee's intervening sentence. P. 429 U. S. 89.Affirmed.BURGER, C.J., delivered the opinion of the Court, in which STEWART, WHITE, MARSHALL, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. STEVENS, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 429 U. S. 89.

1981_80-2043

JUSTICE BRENNAN announced the judgment of the Court and delivered an opinion, in which JUSTICE MARSHALL and JUSTICE STEVENS joined, and in which JUSTICE BLACKMUN joined except for Part II-A-(1).The principal question presented is whether the First Amendment [Footnote 1] imposes limitations upon the exercise by a local Page 457 U. S. 856 school board of its discretion to remove library books from high school and junior high school libraries.IPetitioners are the Board of Education of the Island Trees Union Free School District No. 26, in New York, and Richard Ahrens, Frank Martin, Christina Fasulo, Patrick Hughes, Richard Melchers, Richard Michaels, and Louis Nessim. When this suit was brought, Ahrens was the President of the Board, Martin was the Vice President, and the remaining petitioners were Board members. The Board is a state agency charged with responsibility for the operation and administration of the public schools within the Island Trees School District, including the Island Trees High School and Island Trees Memorial Junior High School. Respondents are Steven Pico, Jacqueline Gold, Glenn Yarris, Russell Rieger, and Paul Sochinski. When this suit was brought, Pico, Gold, Yarris, and Rieger were students at the High School, and Sochinski was a student at the Junior High School.In September, 1975, petitioners Ahrens, Martin, and Hughes attended a conference sponsored by Parents of New York United (PONYU), a politically conservative organization of parents concerned about education legislation in the State of New York. At the conference, these petitioners obtained lists of books described by Ahrens as "objectionable," App. 22, and by Martin as "improper fare for school students," id. at 101. [Footnote 2] It was later determined that the High School library contained nine of the listed books, and that another listed book was in the Junior High School library. [Footnote 3] In Page 457 U. S. 857 February, 1976, at a meeting with the Superintendent of Schools and the Principals of the High School and Junior High School, the Board gave an "unofficial direction" that the listed books be removed from the library shelves and delivered to the Board's offices so that Board members could read them. [Footnote 4] When this directive was carried out, it became publicized, and the Board issued a press release justifying its action. It characterized the removed books as "anti-American, anti-Christian, anti-Sem[i]tic, and just plain filthy," and concluded that "[i]t is our duty, our moral obligation, to protect the children in our schools from this moral danger as surely as from physical and medical dangers." 474 F. Supp. 387, 390 (EDNY 1979).A short time later, the Board appointed a "Book Review Committee," consisting of four Island Trees parents and four members of the Island Trees schools staff, to read the listed books and to recommend to the Board whether the books should be retained, taking into account the books' "educational suitability," "good taste," "relevance," and "appropriateness to age and grade level." In July, the Committee Page 457 U. S. 858 made its final report to the Board, recommending that five of the listed books be retained [Footnote 5] and that two others be removed from the school libraries. [Footnote 6] As for the remaining four books, the Committee could not agree on two, [Footnote 7] took no position on one, [Footnote 8] and recommended that the last book be made available to students only with parental approval. [Footnote 9] The Board substantially rejected the Committee's report later that month, deciding that only one book should be returned to the High School library without restriction, [Footnote 10] that another should be made available subject to parental approval [Footnote 11] but that the remaining nine books should "be removed from elementary and secondary libraries and [from] use in the curriculum." Id. at 391. [Footnote 12] The Board gave no reasons for rejecting the recommendations of the Committee that it had appointed.Respondents reacted to the Board's decision by bringing the present action under 42 U.S.C. § 1983 in the United States District Court for the Eastern District of New York. They alleged that petitioners had"ordered the removal of the books from school libraries and proscribed their use in the curriculum because particular passages in the books offended their social, political Page 457 U. S. 859 and moral tastes, and not because the books, taken as a whole, were lacking in educational value."App. 4. Respondents claimed that the Board's actions denied them their rights under the First Amendment. They asked the court for a declaration that the Board's actions were unconstitutional, and for preliminary and permanent injunctive relief ordering the Board to return the nine books to the school libraries and to refrain from interfering with the use of those books in the schools' curricula. Id. at 5-6.The District Court granted summary judgment in favor of petitioners. 474 F. Supp. 387 (1979). In the court's view, "the parties substantially agree[d] about the motivation behind the board's actions," id. at 391 -- namely, that"the board acted not on religious principles, but on its conservative educational philosophy, and on its belief that the nine books removed from the school library and curriculum were irrelevant, vulgar, immoral, and in bad taste, making them educationally unsuitable for the district's junior and senior high school students."Id. at 392.With this factual premise as its background, the court rejected respondents' contention that their First Amendment rights had been infringed by the Board's actions. Noting that statutes, history, and precedent had vested local school boards with a broad discretion to formulate educational policy, [Footnote 13] the court concluded that it should not intervene in "the daily operations of school systems'" unless "'basic constitutional values'" were "'sharply implicate[d],'" [Footnote 14] and determined Page 457 U. S. 860 that the conditions for such intervention did not exist in the present case. Acknowledging that the "removal [of the books] . . . clearly was content-based," the court nevertheless found no constitutional violation of the requisite magnitude:"The board has restricted access only to certain books which the board believed to be, in essence, vulgar. While removal of such books from a school library may . . . reflect a misguided educational philosophy, it does not constitute a sharp and direct infringement of any first amendment right."Id. at 397.A three-judge panel of the United States Court of Appeals for the Second Circuit reversed the judgment of the District Court, and remanded the action for a trial on respondents' allegations. 638 F.2d 404 (1980). Each judge on the panel filed a separate opinion. Delivering the judgment of the court, Judge Sifton treated the case as involving "an unusual and irregular intervention in the school libraries' operations by persons not routinely concerned with such matters," and concluded that petitioners were obliged to demonstrate a reasonable basis for interfering with respondents' First Amendment rights. Id. at 414-415. He then determined that, at least at the summary judgment stage, petitioners had not offered sufficient justification for their action, [Footnote 15] and concluded that respondents"should have . . . been offered an opportunity to persuade a finder of fact that the ostensible justifications for [petitioners'] actions . . . were simply pretexts for the suppression of free speech."Id. at 417. [Footnote 16] Judge Newman Page 457 U. S. 861 concurred in the result. Id. at 432-438. He viewed the case as turning on the contested factual issue of whether petitioners' removal decision was motivated by a justifiable desire to remove books containing vulgarities and sexual explicitness, or rather by an impermissible desire to suppress ideas. Id. at 4337. [Footnote 17] We granted certiorari, 454 U.S. 891 (1981).IIWe emphasize at the outset the limited nature of the substantive question presented by the case before us. Our precedents have long recognized certain constitutional limits upon the power of the State to control even the curriculum and classroom. For example, Meyer v. Nebraska, 262 U. S. 390 (1923), struck down a state law that forbade the teaching of modern foreign languages in public and private schools, and Epperson v. Arkansas, 393 U. S. 97 (1968), declared unconstitutional a state law that prohibited the teaching of the Darwinian theory of evolution in any state-supported school. But the current action does not require us to reenter this difficult terrain, which Meyer and Epperson traversed without apparent misgiving. For as this case is presented to us, it does not involve textbooks, or indeed any books that Island Page 457 U. S. 862 Trees students would be required to read. [Footnote 18] Respondents do not seek in this Court to impose limitations upon their school Board's discretion to prescribe the curricula of the Island Trees schools. On the contrary, the only books at issue in this case are library books, books that, by their nature, are optional, rather than required, reading. Our adjudication of the present case thus does not intrude into the classroom, or into the compulsory courses taught there. Furthermore, even as to library books, the action before us does not involve the acquisition of books. Respondents have not sought to compel their school Board to add to the school library shelves any books that students desire to read. Rather, the only action challenged in this case is the removal from school libraries of books originally placed there by the school authorities, or without objection from them.The substantive question before us is still further constrained by the procedural posture of this case. Petitioners were granted summary judgment by the District Court. The Court of Appeals reversed that judgment, and remanded the action for a trial on the merits of respondents' claims. We can reverse the judgment of the Court of Appeals, and Page 457 U. S. 863 grant petitioners' request for reinstatement of the summary judgment in their favor, only if we determine that "there is no genuine issue as to any material fact," and that petitioners are "entitled to a judgment as a matter of law." Fed.Rule Civ.Proc. 56(c). In making our determination, any doubt as to the existence of a genuine issue of material fact must be resolved against petitioners as the moving party. Adickes v. S. H. Kress & Co., 398 U. S. 144, 398 U. S. 157-159 (1970). Furthermore,"[o]n summary judgment the inferences to be drawn from the underlying facts contained in [the affidavits, attached exhibits, and depositions submitted below] must be viewed in the light most favorable to the party opposing the motion."United States v. Diebold, Inc., 369 U. S. 654, 369 U. S. 655 (1962).In sum, the issue before us in this case is a narrow one, both substantively and procedurally. It may best be restated as two distinct questions. First, does the First Amendment impose any limitations upon the discretion of petitioners to remove library books from the Island Trees High School and Junior High School? Second, if so, do the affidavits and other evidentiary materials before the District Court, construed most favorably to respondents, raise a genuine issue of fact whether petitioners might have exceeded those limitations? If we answer either of these questions in the negative, then we must reverse the judgment of the Court of Appeals and reinstate the District Court's summary judgment for petitioners. If we answer both questions in the affirmative, then we must affirm the judgment below. We examine these questions in turn.(1)The Court has long recognized that local school boards have broad discretion in the management of school affairs. See, e.g., Meyer v. Nebraska, supra, at 262 U. S. 402; Pierce v. Society of Sisters, 268 U. S. 510, 268 U. S. 534 (1925). Epperson v. Arkansas, Page 457 U. S. 864 supra, at 393 U. S. 104, reaffirmed that, by and large, "public education in our Nation is committed to the control of state and local authorities," and that federal courts should not ordinarily "intervene in the resolution of conflicts which arise in the daily operation of school systems." Tinker v. Des Moines School Dist., 393 U. S. 503, 393 U. S. 507 (1969), noted that we have "repeatedly emphasized . . . the comprehensive authority of the States and of school officials . . . to prescribe and control conduct in the schools." We have also acknowledged that public schools are vitally important "in the preparation of individuals for participation as citizens," and as vehicles for "inculcating fundamental values necessary to the maintenance of a democratic political system." Ambach v. Norwick, 441 U. S. 68, 441 U. S. 777 (1979). We are therefore in full agreement with petitioners that local school boards must be permitted "to establish and apply their curriculum in such a way as to transmit community values," and that "there is a legitimate and substantial community interest in promoting respect for authority and traditional values be they social, moral, or political." Brief for Petitioners 10. [Footnote 19]At the same time, however, we have necessarily recognized that the discretion of the States and local school boards in matters of education must be exercised in a manner that comports with the transcendent imperatives of the First Amendment. In West Virginia Board of Education v. Barnette, 319 U. S. 624 (1943), we held that, under the First Amendment, a student in a public school could not be compelled to salute the flag. We reasoned:"Boards of Education . . . have, of course, important, delicate, and highly discretionary functions, but none that they may not perform within the limits of the Bill of Rights. That they are educating the young for citizenship is reason for scrupulous protection of Constitutional Page 457 U. S. 865 freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes."Id. at 319 U. S. 637.Later cases have consistently followed this rationale. Thus, Epperson v. Arkansas invalidated a State's anti-evolution statute as violative of the Establishment Clause, and reaffirmed the duty of federal courts"to apply the First Amendment's mandate in our educational system where essential to safeguard the fundamental values of freedom of speech and inquiry."393 U.S. at 393 U. S. 104. And Tinker v. Des Moines School Dist., supra, held that a local school board had infringed the free speech rights of high school and junior high school students by suspending them from school for wearing black armbands in class as a protest against the Government's policy in Vietnam; we stated there that the "comprehensive authority . . . of school officials" must be exercised "consistent with fundamental constitutional safeguards." 393 U.S. at 393 U. S. 507. In sum, students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," id. at 393 U. S. 506, and therefore local school boards must discharge their "important, delicate, and highly discretionary functions" within the limits and constraints of the First Amendment.The nature of students' First Amendment rights in the context of this case requires further examination. West Virginia Board of Education v. Barnette, supra, is instructive. There the Court held that students' liberty of conscience could not be infringed in the name of "national unity" or "patriotism." 319 U.S. at 319 U. S. 640-641. We explained that"the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control."Id. at 319 U. S. 642. Page 457 U. S. 866 Similarly, Tinker v. Des Moines School Dist., supra, held that students' rights to freedom of expression of their political views could not be abridged by reliance upon an "undifferentiated fear or apprehension of disturbance" arising from such expression:"Any departure from absolute regimentation may cause trouble. Any variation from the majority's opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk, Terminiello v. Chicago, 337 U. S. 1 (1949); and our history says that it is this sort of hazardous freedom -- this kind of openness -- that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this . . . often disputatious society."393 U.S. at 393 U. S. 508-509. In short, "First Amendment rights, applied in light of the special characteristics of the school environment, are available to . . . students." Id. at 393 U. S. 506.Of course, courts should not "intervene in the resolution of conflicts which arise in the daily operation of school systems" unless "basic constitutional values" are "directly and sharply implicate[d]" in those conflicts. Epperson v. Arkansas, 393 U.S. at 393 U. S. 104. But we think that the First Amendment rights of students may be directly and sharply implicated by the removal of books from the shelves of a school library. Our precedents have focused"not only on the role of the First Amendment in fostering individual self-expression, but also on its role in affording the public access to discussion, debate, and the dissemination of information and ideas."First National Bank of Boston v. Bellotti, 435 U. S. 765, 435 U. S. 783 (1978). And we have recognized that "the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge." Griswold v. Connecticut, 381 U. S. 479, 381 U. S. 482 (1965). In keeping with this principle, Page 457 U. S. 867 we have held that, in a variety of contexts, "the Constitution protects the right to receive information and ideas." Stanley v. Georgia, 394 U. S. 557, 394 U. S. 564 (1969); see Kleindienst v. Mandel, 408 U. S. 753, 408 U. S. 762-763 (1972) (citing cases). This right is an inherent corollary of the rights of free speech and press that are explicitly guaranteed by the Constitution, in two senses. First, the right to receive ideas follows ineluctably from the sender's First Amendment right to send them: "The right of freedom of speech and press . . . embraces the right to distribute literature, and necessarily protects the right to receive it." Martin v. Struthers, 319 U. S. 141, 319 U. S. 143 (1943) (citation omitted)."The dissemination of ideas can accomplish nothing if otherwise willing addressees are not free to receive and consider them. It would be a barren marketplace of ideas that had only sellers, and no buyers."Lamont v. Postmaster General, 381 U. S. 301, 381 U. S. 308 (1965) (BRENNAN, J., concurring).More importantly, the right to receive ideas is a necessary predicate to the recipient's meaningful exercise of his own rights of speech, press, and political freedom. Madison admonished us:"A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy, or perhaps both. Knowledge will forever govern ignorance, and a people who mean to be their own Governors must arm themselves with the power which knowledge gives."9 Writings of James Madison 103 (G. Hunt ed.1910). [Footnote 20] Page 457 U. S. 868 As we recognized in Tinker, students too are beneficiaries of this principle:"In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. . . . [S]chool officials cannot suppress 'expressions of feeling with which they do not wish to contend.'"393 U.S. at 393 U. S. 511 (quoting Burnside v. Byars, 363 F.2d 744, 749 (CA5 1966)). In sum, just as access to ideas makes it possible for citizens generally to exercise their rights of free speech and press in a meaningful manner, such access prepares students for active and effective participation in the pluralistic, often contentious society in which they will soon be adult members. Of course all First Amendment rights accorded to students must be construed "in light of the special characteristics of the school environment." Tinker v. Des Moines School Dist., 393 U.S. at 393 U. S. 506. But the special characteristics of the school library make that environment especially appropriate for the recognition of the First Amendment rights of students.A school library, no less than any other public library, is "a place dedicated to quiet, to knowledge, and to beauty." Brown v. Louisiana, 383 U. S. 131, 383 U. S. 142 (1966) (opinion of Fortas, J.). Keyishian v. Board of Regents, 385 U. S. 589 (1967), observed that "students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding.'" [Footnote 21] The school library is the principal locus Page 457 U. S. 869 of such freedom. As one District Court has well put it, in the school library,"a student can literally explore the unknown, and discover areas of interest and thought not covered by the prescribed curriculum. . . . Th[e] student learns that a library is a place to test or expand upon ideas presented to him, in or out of the classroom."Right to Read Defense Committee v. School Committee, 454 F. Supp. 703, 715 (Mass.1978). Petitioners emphasize the inculcative function of secondary education, and argue that they must be allowed unfettered discretion to "transmit community values" through the Island Trees schools. But that sweeping claim overlooks the unique role of the school library. It appears from the record that use of the Island Trees school libraries is completely voluntary on the part of students. Their selection of books from these libraries is entirely a matter of free choice; the libraries afford them an opportunity at self-education and individual enrichment that is wholly optional. Petitioners might well defend their claim of absolute discretion in matters of curriculum by reliance upon their duty to inculcate community values. But we think that petitioners' reliance upon that duty is misplaced where, as here, they attempt to extend their claim of absolute discretion beyond the compulsory environment of the classroom, into the school library and the regime of voluntary inquiry that there holds sway.(2)In rejecting petitioners' claim of absolute discretion to remove books from their school libraries, we do not deny that local school boards have a substantial legitimate role to play in the determination of school library content. We thus must turn to the question of the extent to which the First Amendment places limitations upon the discretion of petitioners to remove books from their libraries. In this inquiry, we Page 457 U. S. 870 enjoy the guidance of several precedents. West Virginia Board of Education v. Barnette stated:"If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion. . . . If there are any circumstances which permit an exception, they do not now occur to us."319 U.S. at 319 U. S. 642. This doctrine has been reaffirmed in later cases involving education. For example, Keyishian v. Board of Regents, supra, at 385 U. S. 603, noted that "the First Amendment . . . does not tolerate laws that cast a pall of orthodoxy over the classroom;" see also Epperson v. Arkansas, 393 U.S. at 393 U. S. 104-105. And Mt. Healthy City Board of Ed. v. Doyle, 429 U. S. 274 (1977), recognized First Amendment limitations upon the discretion of a local school board to refuse to rehire a nontenured teacher. The school board in Mt. Healthy had declined to renew respondent Doyle's employment contract, in part because he had exercised his First Amendment rights. Although Doyle did not have tenure, and thus "could have been discharged for no reason whatever," Mt. Healthy held that he could"nonetheless establish a claim to reinstatement if the decision not to rehire him was made by reason of his exercise of constitutionally protected First Amendment freedoms."Id. at 429 U. S. 283-284. We held further that. once Doyle had shown"that his conduct was constitutionally protected, and that this conduct was a 'substantial factor' . . . in the Board's decision not to rehire him,"the school board was obliged to show"by a preponderance of the evidence that it would have reached the same decision as to respondent's reemployment even in the absence of the protected conduct."Id. at 429 U. S. 287.With respect to the present case, the message of these precedents is clear. Petitioners rightly possess significant discretion to determine the content of their school libraries. But that discretion may not be exercised in a narrowly partisan or political manner. If a Democratic school board, motivated by party affiliation, ordered the removal of all books Page 457 U. S. 871 written by or in favor of Republicans, few would doubt that the order violated the constitutional rights of the students denied access to those books. The same conclusion would surely apply if an all-white school board, motivated by racial animus, decided to remove all books authored by blacks or advocating racial equality and integration. Our Constitution does not permit the official suppression of ideas. Thus, whether petitioners' removal of books from their school libraries denied respondents their First Amendment rights depends upon the motivation behind petitioners' actions. If petitioners intended by their removal decision to deny respondents access to ideas with which petitioners disagreed, and if this intent was the decisive factor in petitioners' decision, [Footnote 22] then petitioners have exercised their discretion in violation of the Constitution. To permit such intentions to control official actions would be to encourage the precise sort of officially prescribed orthodoxy unequivocally condemned in Barnette. On the other hand, respondents implicitly concede that an unconstitutional motivation would not be demonstrated if it were shown that petitioners had decided to remove the books at issue because those books were pervasively vulgar. Tr. of Oral Arg. 36. And again, respondents concede that, if it were demonstrated that the removal decision was based solely upon the "educational suitability" of the books in question, then their removal would be "perfectly permissible." Id. at 53. In other words, in respondents' view, such motivations, if decisive of petitioners' actions, would not carry the danger of an official suppression of ideas, and thus would not violate respondents' First Amendment rights.As noted earlier, nothing in our decision today affects in any way the discretion of a local school board to choose books to add to the libraries of their schools. Because we are concerned in this case with the suppression of ideas, our holding Page 457 U. S. 872 today affects only the discretion to remove books. In brief, we hold that local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books and seek by their removal to "prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion." West Virginia Board of Education v. Barnette, 319 U.S. at 319 U. S. 642. Such purposes stand inescapably condemned by our precedents.BWe now turn to the remaining question presented by this case: do the evidentiary materials that were before the District Court, when construed most favorably to respondents, raise a genuine issue of material fact whether petitioners exceeded constitutional limitations in exercising their discretion to remove the books from the school libraries? We conclude that the materials do raise such a question, which foreclose summary judgment in favor of petitioners.Before the District Court, respondents claimed that petitioners' decision to remove the books "was based on [their] personal values, morals and tastes." App. 139. Respondents also claimed that petitioners objected to the books in part because excerpts from them were "anti-American." Id. at 140. The accuracy of these claims was partially conceded by petitioners, [Footnote 23] and petitioners' own affidavits lent further support to respondents' claims. [Footnote 24] In addition, the Page 457 U. S. 873 record developed in the District Court shows that, when petitioners offered their first public explanation for the removal of the books, they relied in part on the assertion that the removed books were "anti-American," and "offensive to . . . Americans in general." 474 F. Supp. at 390. [Footnote 25] Furthermore, while the Book Review Committee appointed by petitioners was instructed to make its recommendations based upon criteria that appear on their face to be permissible -- the books' "educational suitability," "good taste," "relevance," and "appropriateness to age and grade level," App. 67 -- the Committee's recommendations that five of the books be retained and that only two be removed were essentially rejected by petitioners, without any statement of reasons for doing so. Finally, while petitioners originally defended their removal decision with the explanation that "these books contain obscenities, blasphemies, brutality, and perversion beyond description," 474 F. Supp. at 390, one of the books, A Reader for Writers, was removed even though it contained no such language. 638 F.2d at 428, n. 6 (Mansfield, J., dissenting). Page 457 U. S. 874Standing alone, this evidence respecting the substantive motivations behind petitioners' removal decision would not be decisive. This would be a very different case if the record demonstrated that petitioners had employed established, regular, and facially unbiased procedures for the review of controversial materials. But the actual record in the case before us suggests the exact opposite. Petitioners' removal procedures were vigorously challenged below by respondents, and the evidence on this issue sheds further light on the issue of petitioners' motivations. [Footnote 26] Respondents alleged that, in making their removal decision petitioners ignored "the advice of literary experts," the views of "librarians and teachers within the Island Trees School system," the advice of the Superintendent of Schools, and the guidance of publications that rate books for junior and senior high school students. App. 128-129. Respondents also claimed that petitioners' decision was based solely on the fact that the books were named on the PONYU list received by petitioners Ahrens, Martin, and Hughes, and that petitioners "did not undertake an independent review of other books in the [school] libraries." Id. at 129-130. Evidence before the District Court lends support to these claims. The record shows that, immediately after petitioners first ordered the books removed from the library shelves, the Superintendent of Schools reminded them that "we already have a policy . . . designed expressly Page 457 U. S. 875 to handle such problems," and recommended that the removal decision be approached through this established channel. See n 4, supra. But the Board disregarded the Superintendent's advice, and instead resorted to the extraordinary procedure of appointing a Book Review Committee -- the advice of which was later rejected without explanation. In sum, respondents' allegations and some of the evidentiary materials presented below do not rule out the possibility that petitioners' removal procedures were highly irregular and ad hoc -- the antithesis of those procedures that might tend to allay suspicions regarding petitioners' motivations.Construing these claims, affidavit statements, and other evidentiary materials in a manner favorable to respondents, we cannot conclude that petitioners were "entitled to a judgment as a matter of law." The evidence plainly does not foreclose the possibility that petitioners' decision to remove the books rested decisively upon disagreement with constitutionally protected ideas in those books, or upon a desire on petitioners' part to impose upon the students of the Island Trees High School and Junior High School a political orthodoxy to which petitioners and their constituents adhered. Of course, some of the evidence before the District Court might lead a finder of fact to accept petitioners' claim that their removal decision was based upon constitutionally valid concerns. But that evidence, at most, creates a genuine issue of material fact on the critical question of the credibility of petitioners' justifications for their decision: on that issue, it simply cannot be said that there is no genuine issue as to any material fact.The mandate shall issue forthwith.Affirmed

U.S. Supreme CourtIsland Trees Sch. Dist. v. Pico by Pico, 457 U.S. 853 (1982)Board of Education, Island Trees Union FreeSchool District No. 26 v. Pico by PicoNo. 80-2043Argued March 2, 1982Decided June 25, 1982457 U.S. 853SyllabusPetitioner Board of Education, rejecting recommendations of a committee of parents and school staff that it had appointed, ordered that certain books, which the Board characterized as "anti-American, anti-Christian, anti-Sem[i]tic, and just plain filthy," be removed from high school and junior high school libraries. Respondent students then brought this action for declaratory and injunctive relief under 42 U.S.C. § 1983 against the Board and petitioner Board members, alleging that the Board's actions had denied respondents their rights under the First Amendment. The District Court granted summary judgment in petitioners' favor. The Court of Appeals reversed and remanded for a trial on the merits of respondents' allegations.Held: The judgment is affirmed.638 F.2d 404, affirmed.JUSTICE BRENNAN, joined by JUSTICE MARSHALL and JUSTICE STEVENS, concluded:1. The First Amendment imposes limitations upon a local school board's exercise of its discretion to remove books from high school and junior high school libraries. Pp. 457 U. S. 863-872.(a) Local school boards have broad discretion in the management of school affairs, but such discretion must be exercised in a manner that comports with the transcendent imperatives of the First Amendment. Students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," Tinker v. Des Moines School Dist., 393 U. S. 503, 393 U. S. 506, and such rights may be directly and sharply implicated by the removal of books from the shelves of a school library. While students' First Amendment rights must be construed "in light of the special characteristics of the school environment," ibid., the special characteristics of the school library make that environment especially appropriate for the recognition of such rights. Pp. 457 U. S. 863-869.(b) While petitioners might rightfully claim absolute discretion in matters of curriculum by reliance upon their duty to inculcate community values in schools, petitioners' reliance upon that duty is misplaced Page 457 U. S. 854 where they attempt to extend their claim of absolute discretion beyond the compulsory environment of the classroom into the school library and the regime of voluntary inquiry that there holds sway. P. 457 U. S. 869.(c) Petitioners possess significant discretion to determine the content of their school libraries, but that discretion may not be exercised in a narrowly partisan or political manner. Whether petitioners' removal of books from the libraries denied respondents their First Amendment rights depends upon the motivation behind petitioners' actions. Local school boards may not remove books from school libraries simply because they dislike the ideas contained in those books and seek by their removal to "prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion." West Virginia Board of Education v. Barnette, 319 U. S. 624, 319 U. S. 642. If such an intention was the decisive factor in petitioners' decision, then petitioners have exercised their discretion in violation of the Constitution. Pp. 457 U. S. 869-872.2. The evidentiary materials before the District Court must be construed favorably to respondents, given the procedural posture of this case. When so construed, those evidentiary materials raise a genuine issue of material fact as to whether petitioners exceeded constitutional limitations in exercising their discretion to remove the books at issue from their school libraries. Respondents' allegations, and some of the evidentiary materials before the District Court, also fail to exclude the possibility that petitioners' removal procedures were highly irregular and ad hoc -- the antithesis of those procedures that might tend to allay suspicions regarding petitioners' motivation. Pp. 457 U. S. 872-875.JUSTICE BLACKMUN concluded that a proper balance between the limited constitutional restriction imposed on school officials by the First Amendment and the broad state authority to regulate education would be struck by holding that school officials may not remove books from school libraries for the purpose of restricting access to the political ideas or social perspectives discussed in the books when that action is motivated simply by the officials' disapproval of the ideas involved. Pp. 457 U. S. 879-882.JUSTICE WHITE, while agreeing that there should be a trial to resolve the factual issues, concluded that there is no necessity at this point for discussing the extent to which the First Amendment limits the school board's discretion to remove books from the school libraries. Pp. 457 U. S. 883-884.BRENNAN, J., announced the judgment of the Court and delivered an opinion, in which MARSHALL and STEVENS, JJ., joined and in all but Part II-A(1) of which BLACKMUN, J., joined. BLACKMUN, J., filed an opinion concurring in part and concurring in the judgment, post, p. 457 U. S. 875. WHITE, J., filed an opinion concurring in the judgment, post, p. 457 U. S. 883. BURGER, C.J., filed a Page 457 U. S. 855 dissenting opinion, in which POWELL, REHNQUIST, and O'CONNOR, JJ., joined, post, p. 457 U. S. 885. POWELL, J., filed a dissenting opinion, post, p. 457 U. S. 893. REHNQUIST, J., filed a dissenting opinion, in which BURGER, C.J., and POWELL, J., joined, post, p. 457 U. S. 904. O'CONNOR, J., filed a dissenting opinion, post, p. 457 U. S. 921.

1984_83-1378

JUSTICE BRENNAN delivered the opinion of the Court.Douglas v. California, 372 U. S. 353 (1963), held that the Fourteenth Amendment guarantees a criminal defendant the right to counsel on his first appeal as of right. In this case, Page 469 U. S. 389 we must decide whether the Due Process Clause of the Fourteenth Amendment guarantees the criminal defendant the effective assistance of counsel on such an appeal.IOn March 21, 1976, a Kentucky jury found respondent guilty of trafficking in controlled substances. His retained counsel filed a timely notice of appeal to the Court of Appeals of Kentucky, the state intermediate appellate court. Kentucky Rule of Appellate Procedure 1.095(a)(1) required appellants to serve on the appellate court the record on appeal and a "statement of appeal" that was to contain the names of appellants and appellees, counsel, and the trial judge, the date of judgment, the date of notice of appeal, and additional information. [Footnote 1] See England v. Spalding, 460 S.W.2d 4, 6 (Ky.1970) (Rule "is designed to assist this court in processing records and compliance is not jurisdictional"). Respondent's counsel failed to file a statement of appeal when he filed his brief and the record on appeal on September 12, 1977. [Footnote 2] Page 469 U. S. 390When the Commonwealth filed its brief, it included a motion to dismiss the appeal for failure to file a statement of appeal. The Court of Appeals granted this motion because "appellant has failed to supply the information required by RAP 1.095(a)(1)." App. 37a. Respondent moved for reconsideration, arguing that all of the information necessary for a statement of appeal was in fact included in his brief, albeit in a somewhat different format. At the same time, respondent tendered a statement of appeal that formally complied with the Commonwealth Rules. The Court of Appeals summarily denied the motion for reconsideration. Respondent sought discretionary review in the Supreme Court of Kentucky, but the judgment of the Court of Appeals was affirmed in a one-sentence order. In a final effort to gain state appellate review of his conviction, respondent moved the trial court to vacate the judgment or to grant a belated appeal. The trial court denied the motion.Respondent then sought federal habeas corpus relief in the United States District Court for the Eastern District of Kentucky. He challenged the constitutionality of the Commonwealth's dismissal of his appeal because of his lawyer's failure to file the statement of appeal, on the ground that the dismissal deprived him of his right to effective assistance of counsel on appeal guaranteed by the Fourteenth Amendment. The District Court granted respondent a conditional writ of habeas corpus ordering his release unless the Commonwealth either reinstated his appeal or retried him. [Footnote 3] Page 469 U. S. 391 The Commonwealth appealed to the Court of Appeals for the Sixth Circuit, which reached no decision on the merits but instead remanded the case to the District Court for determination whether respondent had a claim under the Equal Protection Clause. Lucey v. Seabold, 645 F.2d 547 (1981).On remand, counsel for both parties stipulated that there was no equal protection issue in the case, the only issue being whether the state court's action in dismissing respondent's appeal violated the Due Process Clause. The District Court thereupon reissued the conditional writ of habeas corpus. On January 12, 1984, the Court of Appeals for the Sixth Circuit affirmed the judgment of the District Court. Lucey v. Kavanaugh, 724 F.2d 560. We granted the petition for certiorari. 466 U.S. 949 (1984). We affirm. [Footnote 4]IIRespondent has for the past seven years unsuccessfully pursued every avenue open to him in an effort to obtain a decision on the merits of his appeal and to prove that his conviction was unlawful. The Kentucky appellate courts' refusal to hear him on the merits of his claim does not stem from any view of those merits, and respondent does not argue in this Court that those courts were constitutionally required to render judgment on the appeal in his favor. Rather the issue we must decide is whether the state court's dismissal of the appeal, despite the ineffective Page 469 U. S. 392 assistance of respondent's counsel on appeal, violates the Due Process Clause of the Fourteenth Amendment.Before analyzing the merits of respondent's contention, it is appropriate to emphasize two limits on the scope of the question presented. First, there is no challenge to the District Court's finding that respondent indeed received ineffective assistance of counsel on appeal. Respondent alleges -- and petitioners do not deny in this Court -- that his counsel's failure to obey a simple court rule that could have such drastic consequences required this finding. We therefore need not decide the content of appropriate standards for judging claims of ineffective assistance of appellate counsel. Cf. Strickland v. Washington, 466 U. S. 668 (1984); United States v. Cronic, 466 U. S. 648 (1984). Second, the stipulation in the District Court on remand limits our inquiry solely to the validity of the state court's action under the Due Process Clause of the Fourteenth Amendment. [Footnote 5]Respondent's claim arises at the intersection of two lines of cases. In one line, we have held that the Fourteenth Amendment guarantees a criminal appellant pursuing a first appeal as of right certain minimum safeguards necessary to make that appeal "adequate and effective," see Griffin v. Illinois, 351 U. S. 12, 351 U. S. 20 (1956); among those safeguards is the right to counsel, see Douglas v. California, 372 U. S. 353 (1963). In the second line, we have held that the trial-level right to counsel, created by the Sixth Amendment and applied to the States through the Fourteenth Amendment, see Gideon v. Wainwright, 372 U. S. 335, 372 U. S. 344 (1963), comprehends the right to effective assistance of counsel. See Cuyler v. Sullivan, 446 U. S. 335, 446 U. S. 344 (1980). The question presented in this case is whether the appellate-1evel right to counsel also comprehends the right to effective assistance of counsel. Page 469 U. S. 393AAlmost a century ago, the Court held that the Constitution does not require States to grant appeals as of right to criminal defendants seeking to review alleged trial court errors. McKane v. Durston, 153 U. S. 684 (1894). Nonetheless, if a State has created appellate courts as "an integral part of the . . . system for finally adjudicating the guilt or innocence of a defendant," Griffin v. Illinois, 351 U.S. at 351 U. S. 18, the procedures used in deciding appeals must comport with the demands of the Due Process and Equal Protection Clauses of the Constitution. In Griffin itself, a transcript of the trial court proceedings was a prerequisite to a decision on the merits of an appeal. See id. at 351 U. S. 13-14. We held that the State must provide such a transcript to indigent criminal appellants who could not afford to buy one if that was the only way to assure an "adequate and effective" appeal. Id. at 351 U. S. 20; see also Eskridge v. Washington State Board of Prison Terms and Paroles, 357 U. S. 214, 357 U. S. 215 (1958) (per curiam) (invalidating state rule giving free transcripts only to defendants who could convince trial judge that "justice will thereby be promoted"); Burns v. Ohio, 360 U. S. 252 (1959) (invalidating state requirement that indigent defendants pay fee before filing notice of appeal of conviction); Lane v. Brown, 372 U. S. 477 (1963) (invalidating procedure whereby meaningful appeal was possible only if public defender requested a transcript); Draper v. Washington, 372 U. S. 487 (1963) (invalidating state procedure providing for free transcript only for a defendant who could satisfy the trial judge that his appeal was not frivolous).Just as a transcript may by rule or custom be a prerequisite to appellate review, the services of a lawyer will for virtually every layman be necessary to present an appeal in a form suitable for appellate consideration on the merits. See Griffin, supra, at 351 U. S. 20. Therefore, Douglas v. California, supra, recognized that the principles of Griffin required a Page 469 U. S. 394 State that afforded a right of appeal to make that appeal more than a "meaningless ritual" by supplying an indigent appellant in a criminal case with an attorney. 372 U.S. at 372 U. S. 358. This right to counsel is limited to the first appeal as of right, see Ross v. Moffitt, 417 U. S. 600 (1974), and the attorney need not advance every argument, regardless of merit, urged by the appellant, see Jones v. Barnes, 463 U. S. 745 (1983). But the attorney must be available to assist in preparing and submitting a brief to the appellate court, Swenson v. Bosler, 386 U. S. 258 (1967) (per curiam), and must play the role of an active advocate, rather than a mere friend of the court assisting in a detached evaluation of the appellant's claim. See Anders v. California, 386 U. S. 738 (1967); see also Entsminger v. Iowa, 386 U. S. 748 (1967).BGideon v. Wainwright, supra, held that the Sixth Amendment right to counsel was "so fundamental and essential to a fair trial, and so, to due process of law, that it is made obligatory upon the States by the Fourteenth Amendment.'" Id. at 372 U. S. 340, quoting Betts v. Brady, 316 U. S. 455, 316 U. S. 465 (1942); see also Powell v. Alabama, 287 U. S. 45 (1932); Johnson v. Zerbst, 304 U. S. 458 (1938). Gideon rested on the "obvious truth" that lawyers are "necessities, not luxuries" in our adversarial system of criminal justice. 372 U.S. at 372 U. S. 344."The very premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free."Herring v. New York, 422 U. S. 853, 422 U. S. 862 (1975). The defendant's liberty depends on his ability to present his case in the face of "the intricacies of the law and the advocacy of the public prosecutor," United States v. Ash, 413 U. S. 300, 413 U. S. 309 (1973); a criminal trial is thus not conducted in accord with due process of law unless the defendant has counsel to represent him. [Footnote 6] Page 469 U. S. 395As we have made clear, the guarantee of counsel "cannot be satisfied by mere formal appointment," Avery v. Alabama, 308 U. S. 444, 308 U. S. 446 (1940)."That a person who happens to be a lawyer is present at trial alongside the accused, however, is not enough to satisfy the constitutional command. . . . An accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair."Strickland v. Washington, 466 U.S. at 466 U. S. 685; see also McMann v. Richardson, 397 U. S. 759, 397 U. S. 771, n. 14 (1970) ("It has long been recognized that the right to counsel is the right to the effective assistance of counsel"); Cuyler v. Sullivan, 446 U.S. at 446 U. S. 344. Last Term, we emphasized this point while clarifying the standards to be used in assessing claims that trial counsel failed to provide effective representation. See United States v. Cronic, 466 U. S. 648 (1984); Strickland v. Washington, supra. Because the right to counsel is so fundamental to a fair trial, the Constitution cannot tolerate trials in which counsel, though present in name, is unable to assist the defendant to obtain a fair decision on the merits.As the quotation from Strickland, supra, makes clear, the constitutional guarantee of effective assistance of counsel at trial applies to every criminal prosecution, without regard to whether counsel is retained or appointed. See Cuyler v. Page 469 U. S. 396 Sullivan, supra, at 446 U. S. 342-345. The constitutional mandate is addressed to the action of the State in obtaining a criminal conviction through a procedure that fails to meet the standards of due process of law."Unless a defendant charged with a serious offense has counsel able to invoke the procedural and substantive safeguards that distinguish our system of justice, a serious risk of injustice infects the trial itself. When a State obtains a criminal conviction through such a trial, it is the State that unconstitutionally deprives the defendant of his liberty."Cuyler v. Sullivan, supra, at 446 U. S. 343 (citations omitted).CThe two lines of cases mentioned -- the cases recognizing the right to counsel on a first appeal as of right and the cases recognizing that the right to counsel at trial includes a right to effective assistance of counsel -- are dispositive of respondent's claim. In bringing an appeal as of right from his conviction, a criminal defendant is attempting to demonstrate that the conviction, with its consequent drastic loss of liberty, is unlawful. To prosecute the appeal, a criminal appellant must face an adversary proceeding that -- like a trial -- is governed by intricate rules that to a layperson would be hopelessly forbidding. An unrepresented appellant -- like an unrepresented defendant at trial -- is unable to protect the vital interests at stake. To be sure, respondent did have nominal representation when he brought this appeal. But nominal representation on an appeal as of right -- like nominal representation at trial -- does not suffice to render the proceedings constitutionally adequate; a party whose counsel is unable to provide effective representation is in no better position than one who has no counsel at all.A first appeal as of right therefore is not adjudicated in accord with due process of law if the appellant does not have the effective assistance of an attorney. [Footnote 7] This result is Page 469 U. S. 397 hardly novel. The petitioners in both Anders v. California, 386 U. S. 738 (1967), and Entsminger v. Iowa, 386 U. S. 748 (1967), claimed that, although represented in name by counsel, they had not received the type of assistance constitutionally required to render the appellate proceedings fair. In both cases, we agreed with the petitioners, holding that counsel's failure in Anders to submit a brief on appeal and counsel's waiver in Entsminger of the petitioner's right to a full transcript rendered the subsequent judgments against the petitioners unconstitutional. [Footnote 8] In short, the promise of Douglas that a criminal defendant has a right to counsel on appeal -- like the promise of Gideon that a criminal defendant has a right to counsel at trial -- would be a futile gesture unless it comprehended the right to the effective assistance of counsel.Recognition of the right to effective assistance of counsel on appeal requires that we affirm the Sixth Circuit's decision in this case. Petitioners object that this holding will disable state courts from enforcing a wide range of vital procedural rules governing appeals. Counsel may, according to petitioners, disobey such rules with impunity if the state courts are precluded from enforcing them by dismissing the appeal.Petitioners' concerns are exaggerated. The lower federal courts -- and many state courts -- overwhelmingly have recognized Page 469 U. S. 398 a right to effective assistance of counsel on appeal. [Footnote 9] These decisions do not seem to have had dire consequences for the States' ability to conduct appeals in accordance with Page 469 U. S. 399 reasonable procedural rules. Nor for that matter has the longstanding recognition of a right to effective assistance of counsel at trial -- including the recognition in Cuyler v. Sullivan, 446 U. S. 335 (1980), that this right extended to retained as well as appointed counsel -- rendered ineffectual the perhaps more complex procedural rules governing the conduct of trials. See also United States v. Cronic, 466 U. S. 648 (1984); Strickland v. Washington, 466 U. S. 668 (1984).To the extent that a State believes its procedural rules are in jeopardy, numerous courses remain open. For example, a State may certainly enforce a vital procedural rule by imposing sanctions against the attorney, rather than against the client. Such a course may well be more effective than the alternative of refusing to decide the merits of an appeal and will reduce the possibility that a defendant who was powerless to obey the rules will serve a term of years in jail on an unlawful conviction. If instead a state court chooses to dismiss an appeal when an incompetent attorney has violated local rules, it may do so if such action does not intrude upon the client's due process rights. For instance the Kentucky Supreme Court itself in other contexts has permitted a postconviction attack on the trial judgment as "the appropriate remedy for frustrated right of appeal," Hammershoy v. Commonwealth, 398 S.W.2d 883 (1966); this is but one of several solutions that state and federal courts have permitted in similar cases. [Footnote 10] A system of appeal as of right is established precisely to assure that only those who are Page 469 U. S. 400 validly convicted have their freedom drastically curtailed. A State may not extinguish this right because another right of the appellant -- the right to effective assistance of counsel -- has been violated.IIIPetitioners urge that our reasoning rests on faulty premises. First, petitioners argue that, because the Commonwealth need not establish a system of appeals as of right in the first instance, it is immune from all constitutional scrutiny when it chooses to have such a system. Second, petitioners deny that respondent had the right to counsel on his appeal to the Kentucky Court of Appeals because such an appeal was a "conditional appeal," rather than an appeal as of right. Third, petitioners argue that, even if the Commonwealth's actions here are subject to constitutional scrutiny and even if the appeal sought here was an appeal as of right, the Due Process Clause -- upon which respondent's claimed right to effective assistance of counsel is based -- has no bearing on the Commonwealth's actions in this case. We take up each of these three arguments in turn.AIn support of their first argument, petitioners initially rely on McKane v. Durston, 153 U. S. 684 (1894), which held that a State need not provide a system of appellate review as of right at all. See also Ross v. Moffitt, 417 U.S. at 417 U. S. 611; Jones v. Barnes, 463 U.S. at 463 U. S. 751. Petitioners derive from this proposition the much broader principle that "whatever a state does or does not do on appeal -- whether or not to have an appeal and if so, how to operate it -- is of no due process concern to the Constitution. . . ." Brief for Petitioners 23. It would follow that the Kentucky court's action in cutting off respondent's appeal because of his attorney's incompetence would be permissible under the Due Process Clause.The right to appeal would be unique among state actions if it could be withdrawn without consideration of applicable due Page 469 U. S. 401 process norms. For instance, although a State may choose whether it will institute any given welfare program, it must operate whatever programs it does establish subject to the protections of the Due Process Clause. See Goldberg v. Kelly, 397 U. S. 254, 397 U. S. 262 (1970). Similarly, a State has great discretion in setting policies governing parole decisions, but it must nonetheless make those decisions in accord with the Due Process Clause. See Morrissey v. Brewer, 408 U. S. 471, 408 U. S. 481-484 (1972). See also Graham v. Richardson, 403 U. S. 365, 403 U. S. 374 (1971); Bell v. Burson, 402 U. S. 535, 402 U. S. 539 (1971); Sherbert v. Verner, 374 U. S. 398, 374 U. S. 404 (1963); Joint Anti-Fascist Refugee Committee v. McGrath, 341 U. S. 123, 341 U. S. 165-166 (1951) (Frankfurter, J., concurring). In short, when a State opts to act in a field where its action has significant discretionary elements, it must nonetheless act in accord with the dictates of the Constitution -- and, in particular, in accord with the Due Process Clause.BPetitioners' second argument relies on the holding of Ross v. Moffitt, supra, that a criminal defendant has a right to counsel only on appeals as of right, not on discretionary state appeals. According to petitioners, the Kentucky courts permit criminal appeals only on condition that the appellant follow the local rules and statutes governing such appeals. See Brown v. Commonwealth, 551 S.W.2d 557, 559 (1977). Therefore, the system does not establish an appeal as of right, but only a "conditional appeal" subject to dismissal if the state rules are violated. Petitioners conclude that, if respondent has no appeal as of right, he has no right to counsel -- or to effective assistance of counsel -- on his "conditional appeal."Under any reasonable interpretation of the line drawn in Ross between discretionary appeals and appeals as of right, a criminal defendant's appeal of a conviction to the Kentucky Court of Appeals is an appeal as of right. Section 115 of the Page 469 U. S. 402 Kentucky Constitution provides that "[i]n all cases, civil and criminal, there shall be allowed as a matter of right at least one appeal to another court." Unlike the appellant in the discretionary appeal in Ross, a criminal appellant in the Kentucky Court of Appeals typically has not had the benefit of a previously prepared trial transcript, a brief on the merits of the appeal, or a previous written opinion. See Ross, supra, at 417 U. S. 615. In addition, petitioners fail to point to any source of Kentucky law indicating that a decision on the merits in an appeal like that of respondent -- unlike the discretionary appeal in Ross -- is contingent on a discretionary finding by the Court of Appeals that the case involves significant public or jurisprudential issues; the purpose of a first appeal in the Kentucky court system appears to be precisely to determine whether the individual defendant has been lawfully convicted. In short, a criminal defendant bringing an appeal to the Kentucky Court of Appeals has not previously had "an adequate opportunity to present his claims fairly in the context of the State's appellate process." See 417 U.S. at 417 U. S. 616. It follows that for purposes of analysis under the Due Process Clause, respondent's appeal was an appeal as of right, thus triggering the right to counsel recognized in Douglas v. California, 372 U. S. 353 (1963).CFinally, petitioners argue that even if the Due Process Clause does apply to the manner in which a State conducts its system of appeals and even if the appeal denied to respondent was an appeal as of right, the Due Process Clause nonetheless is not offended by the Kentucky court's refusal to decide respondent's appeal on the merits, because that Clause has no role to play in granting a criminal appellant the right to counsel -- or a fortiori to the effective assistance of counsel -- on appeal. Although it may seem that Douglas and its progeny defeat this argument, petitioners attempt to distinguish these cases by exploiting a seeming ambiguity in our previous decisions. Page 469 U. S. 403According to the petitioners, the constitutional requirements recognized in Griffin, Douglas, and the cases that followed had their source in the Equal Protection Clause, and not the Due Process Clause, of the Fourteenth Amendment. In support of this contention, petitioners point out that all of the cases in the Griffin line have involved claims by indigent defendants that they have the same right to a decision on the merits of their appeal as do wealthier defendants who are able to afford lawyers, transcripts, or the other prerequisites of a fair adjudication on the merits. As such, petitioners claim, the cases all should be understood as equal protection cases challenging the constitutional validity of the distinction made between rich and poor criminal defendants. Petitioners conclude that, if the Due Process Clause permits criminal appeals as of right to be forfeited because the appellant has no transcript or no attorney, it surely permits such appeals to be forfeited when the appellant has an attorney who is unable to assist in prosecuting the appeal.Petitioners' argument rests on a misunderstanding of the diverse sources of our holdings in this area. In Ross v. Moffitt, 417 U.S., at 417 U. S. 608-609, we held that"[t]he precise rationale for the Griffin and Douglas lines of cases has never been explicitly stated, some support being derived from the Equal Protection Clause of the Fourteenth Amendment, and some from the Due Process Clause of that Amendment."Accord, Bearden v. Georgia, 461 U. S. 660, 461 U. S. 665 (1983) ("Due process and equal protection principles converge in the Court's analysis in these cases"). See also Note, The Supreme Court, 1962 Term, 77 Harv.L.Rev. 62, 107, n. 13 (1963) (citing cases). This rather clear statement in Ross that the Due Process Clause played a significant role in prior decisions is well supported by the cases themselves.In Griffin, for instance, the State had in effect dismissed petitioner's appeal because he could not afford a transcript. In establishing a system of appeal as of right, the State had implicitly determined that it was unwilling to curtail drastically a defendant's liberty unless a second judicial decisionmaker, Page 469 U. S. 404 the appellate court, was convinced that the conviction was in accord with law. But having decided that this determination was so important -- having made the appeal the final step in the adjudication of guilt or innocence of the individual, see Griffin, 351 U.S. at 351 U. S. 18 -- the State could not in effect make it available only to the wealthy. Such a disposition violated equal protection principles because it distinguished between poor and rich with respect to such a vital right. But it also violated due process principles because it decided the appeal in a way that was arbitrary with respect to the issues involved. In Griffin, we noted that a court dispensing "justice" at the trial level by charging the defendant for the privilege of pleading not guilty "would make the constitutional promise of a fair trial a worthless thing." Id. at 351 U. S. 17. Deciding an appeal on the same basis would have the same obvious -- and constitutionally fatal -- defect. See also Douglas, supra, at 372 U. S. 357 (procedure whereby indigent defendant must demonstrate merit of case before obtaining counsel on appeal "does not comport with fair procedure"); Anders v. California, 386 U.S. at 386 U. S. 744 ("constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate") (emphasis added).Our decisions in Anders, Entsminger v. Iowa, 386 U. S. 748 (1967), and Jones v. Barnes, 463 U. S. 745 (1983), are all inconsistent with petitioners' interpretation. As noted above, all of these cases dealt with the responsibilities of an attorney representing an indigent criminal defendant on appeal. [Footnote 11] Although the Court reached a different result in Jones from that reached in Anders and Entsminger, all of these cases rest on the premise that a State must supply indigent criminal appellants with attorneys who can provide specified types of assistance -- that is, that such appellants have a right to effective assistance of counsel. Petitioners claim that all such rights enjoyed by criminal appellants have Page 469 U. S. 405 their source in the Equal Protection Clause, and that such rights are all measured by the rights of nonindigent appellants. But if petitioners' argument in the instant case is correct, nonindigent appellants themselves have no right to effective assistance of counsel. It would follow that indigent appellants also have no right to effective assistance of counsel, and all three of these cases erred in reaching the contrary conclusion.The lesson of our cases, as we pointed out in Ross, supra, at 417 U. S. 609, is that each Clause triggers a distinct inquiry:"'Due Process' emphasizes fairness between the State and the individual dealing with the State, regardless of how other individuals in the same situation may be treated. 'Equal Protection,' on the other hand, emphasizes disparity in treatment by a State between classes of individuals whose situations are arguably indistinguishable. [Footnote 12]"In cases like Griffin and Douglas, due process concerns were involved because the States involved had set up a system of appeals as of right but had refused to offer each defendant a fair opportunity to obtain an adjudication on the merits of his appeal. Equal protection concerns were involved because the State treated a class of defendants -- indigent ones -- differently for purposes of offering them a meaningful appeal. Both of these concerns were implicated in the Griffin and Douglas cases and both Clauses supported the decisions reached by this Court.Affirmed

U.S. Supreme CourtEvitts v. Lucey, 469 U.S. 387 (1985)Evitts v. LuceyNo. 83-1378Argued October 10, 1984Decided January 21, 1985469 U.S. 387SyllabusAfter respondent was convicted of a drug offense in a Kentucky state court, his retained counsel filed a timely notice of appeal to the Kentucky Court of Appeals. But because counsel failed to file the statement of appeal required by a Kentucky Rule of Appellate Procedure when he filed his brief and record on appeal, the Court of Appeals dismissed the appeal and later denied a motion for reconsideration. The Kentucky Supreme Court affirmed, and the trial court denied a motion to vacate the conviction or grant a belated appeal. The respondent then sought habeas corpus relief in Federal District Court, challenging the dismissal of his appeal on the ground that it deprived him of the right to effective assistance of counsel on appeal guaranteed by the Due Process Clause of the Fourteenth Amendment. The District Court granted a conditional writ of habeas corpus, ordering respondent's release unless the Commonwealth either reinstated his appeal or retried him. The United States Court of Appeals affirmed.Held: The Due Process Clause of the Fourteenth Amendment guarantees a criminal defendant the effective assistance of counsel on his first appeal as of right. Pp. 469 U. S. 391-405.(a) Nominal representation on an appeal as of right -- like nominal representation at trial -- does not suffice to render the proceedings constitutionally adequate; a party whose counsel is unable to provide effective representation is in no better position than one who has no counsel at all. A first appeal as of right therefore is not adjudicated in accord with due process of law if the appellant does not have the effective assistance of an attorney. The promise of Douglas v. California, 372 U. S. 353, that a criminal defendant has a right to counsel on his first appeal as of right -- like the promise of Gideon v. Wainwright, 372 U. S. 335, that a criminal defendant has a right to counsel at trial -- would be a futile gesture unless it comprehended the right to effective assistance of counsel. Pp. 469 U. S. 391-400.(b) When a State opts to act in a field where its action has significant discretionary elements, such as where it establishes a system of appeals as of right although not required to do so, it must nonetheless act in Page 469 U. S. 388 accord with the dictates of the Constitution, and, in particular, in accord with the Due Process Clause. Pp. 469 U. S. 400-401.(c) Under any reasonable interpretation of the line drawn in Ross v. Moffitt, 417 U. S. 600, between discretionary appeals in which a criminal defendant has no right to counsel and appeals as of right in which he does, a criminal defendant's appeal of a connection to the Kentucky Court of Appeals is an appeal as of right. The Kentucky Constitution requires that at least one appeal as of right be allowed in all cases, civil and criminal. And a criminal defendant appealing to the Kentucky Court of Appeals has not previously had an adequate opportunity to present his claims fairly in the context of the State's appellate process. It follows that for purposes of analysis under the Due Process Clause, respondent's appeal was an appeal as of right, thus triggering the right to counsel recognized in Douglas v. California, supra. Pp. 469 U. S. 401-402.(d) Petitioners' argument that the Due Process Clause has no bearing on the Commonwealth's actions in this case because the constitutional requirements recognized in Griffin v. Illinois, 351 U. S. 12 (the transcript of the trial is a prerequisite to a decision on the merits of an appeal), Douglas v. California, supra, and the cases that followed had their source in the Equal Protection Clause, not the Due Process Clause, rests on a misunderstanding of the diverse sources of this Court's holdings in this area of the law. Both due process and equal protection concerns were implicated in Griffin and Douglas and both Clauses supported those decisions. Pp. 469 U. S. 402-405.724 F.2d 560, affirmed.BRENNAN, J., delivered the opinion of the Court, in which WHITE, MARSHALL, BLACKMUN, POWELL, STEVENS, and O'CONNOR, JJ., joined. BURGER, C.J., filed a dissenting opinion, post, p. 469 U. S. 405. REHNQUIST, J., filed a dissenting opinion, in which BURGER, C.J., joined, post, p. 469 U. S. 406.

1957_668

MR. JUSTICE FRANKFURTER delivered the opinion of the Court.This is a prosecution under an indictment containing six counts for narcotics offenses. Four counts were based on provisions of the Internal Revenue Code of 1954 and two counts on the Narcotic Drugs Import and Export Act, as amended. The first three counts derive from a sale on February 26, 1955, of twenty capsules of heroin and three capsules of cocaine; the last three counts derive from a sale of thirty-five capsules of heroin on February 28, 1955. Counts One and Four charged the sale of the drugs, on the respective dates, not "in pursuance of a written order" of the person to whom the drugs were sold on the requisite Treasury form, in violation of § 4705(a) of the Internal Revenue Code of 1954. Counts Two and Five charged the sale and distribution of the drugs on the respective dates not "in the original stamped package or from the original stamped package," in violation of § 4704(a) of the Internal Revenue Code of 1954. Counts Three and Six charged facilitating concealment and sale of the drugs on the respective dates, with knowledge that the drugs had been unlawfully imported, in violation of § 2(c) of the Narcotic Drugs Import and Export Act, [Footnote 1] as amended by the Act of November 2, 1951, 65 Stat. 767. In short, Congress had made three distinct offenses in connection with the vending of illicit drugs, and the petitioner, having violated these three independent provisions, was prosecuted for all three as separate wrongdoings, despite the fact that these violations of what Congress had proscribed were compendiously committed in single transactions of vending. Duty tried before a jury, petitioner was convicted, and no question touching Page 357 U. S. 388 the conviction is before us. In controversy is the legality of the sentences imposed by the trial court. These were imprisonment for a term of one to five years, imposed on each count, the sentences on the first three counts to run consecutively, the sentences on the remaining three counts to run concurrently with those on the first three counts. Thus, the total sentence was three to fifteen years. Petitioner moved, under 28 U.S.C. § 2255, to vacate the sentence, claiming that, for all three counts, a sentence as for only one count could be imposed. The motion was denied, and the Court of Appeals affirmed, 100 U.S.App.D.C. 315, 244 F.2d 763, with expressions of doubt by two of the judges, who felt themselves bound by Blockburger v. United States, 284 U. S. 299. We brought the case here, 355 U.S. 903, in order to consider whether some of our more recent decisions, while not questioning Blockburger but moving in related areas, may not have impaired its authority.We adhere to the decision in Blockburger v. United States, supra. The considerations advanced in support of the vigorous attack against it have left its justification undisturbed, nor have our later decisions generated counter currents.That the Blockburger opinion did not lay out with particularity the course of anti-narcotics legislation is scant basis for suggesting that the Court was unaware of it or did not duly heed the relevant criteria for statutory construction in dealing with the specific legislation before it. The Court was not an innocent in the history of narcotics legislation. Blockburger was not the first case that brought prosecutions under successive enactments dealing with the control of narcotics before the Court. At the time of Blockburger, it was not customary to make the whole legislative history connected with particular statutes in adjudication part of the conventional apparatus of an opinion. What is more to the point about the Page 357 U. S. 389 Blockburger decision is that the unanimous Court that rendered it then included three Justices conspicuous for their alertness in safeguarding the interests of defendants in criminal cases and in their insistence on the compassionate regard for such interests. Invidiousness is not implied in saying that Mr. Justice Brandeis, Mr. Justice Butler and Mr. Justice Roberts [Footnote 2] would not have joined in finding that Congress established independent curbs as tactical details in the strategy against illicit narcotics trade if it could be reasonably maintained that what in fact Congress was doing was merely giving different labels to the same thing. 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. In Blockburger, the offender was indicted, convicted, and cumulatively sentenced for two separate offenses: selling forbidden drugs not "in the original stamped package" (now § 4704(a) of the Internal Revenue Code), and of selling such drugs not "in pursuance of a written order of the person to whom such article is sold" (now § 4705(a) of the Internal Revenue Code). The petitioner here was likewise indicted, tried, convicted and cumulatively sentenced for the two foregoing offenses and, in addition, for violating the amended § 2(c) of the Narcotic Drugs Import and Export Act. And so, while Page 357 U. S. 390 Blockburger was sentenced to ten years for the two offenses, petitioner was sentenced to a maximum of fifteen years. The Court of Appeals inevitably found the Blockburger case controlling.We are strongly urged to reconsider Blockburger by reading the various specific enactments of Congress as reflecting a unitary congressional purpose to outlaw nonmedicinal sales of narcotics. From this, the conclusion is sought to be drawn that, since Congress had only a single purpose, no matter how numerous the violations by an offender, of the specific means for dealing with this unitary purpose, the desire should be attributed to Congress to punish only as for a single offense when these multiple infractions are committed through a single sale. We agree with the starting point, but it leads us to the opposite conclusion. Of course, the various enactments by Congress extending over nearly half a century constitute a network of provisions, steadily tightened and enlarged, for grappling with a powerful, subtle and elusive enemy. If the legislation reveals anything, it reveals the determination of Congress to turn the screw of the criminal machinery -- detection, prosecution and punishment -- tighter and tighter. The three penal laws for which petitioner was convicted have different origins both in time and in design. The present § 2(c) of the Narcotic Drugs Import and Export Act derives from an enactment of February 9, 1909, § 2, 35 Stat. 614. The present § 4705(a) of the Internal Revenue Code of 1954 derives from the Act of December 17, 1914, § 2, 38 Stat. 785, 786. The present § 4704(a) of the Internal Revenue Code of 1954 derives from the Revenue Act of 1918, § 1006, 40 Stat. 1057, 1130 (1919). [Footnote 3] It seems more daring than convincing Page 357 U. S. 391 to suggest that three different enactments, each relating to a separate way of closing in on illicit distribution of narcotics, passed at three different periods, for each of which a separate punishment was declared by Congress, somehow or other ought to have carried with them an implied indication by Congress that, if all these three different restrictions were disregarded, but, forsooth, in the course of one transaction, the defendant should be treated as though he committed only one of these offenses.This situation is toto coelo different from the one that led to our decision in Bell v. United States, 349 U. S. 81. That case involved application of the Mann Act -- a single provision making it a crime to transport a woman in interstate commerce for purposes of prostitution. We held that the transportation of more than one woman as a single transaction is to be dealt with as a single offense, for the reason that, when Congress has not explicitly stated what the unit of offense is, the doubt will be judicially resolved in favor of lenity. It is one thing for a single transaction to include several units relating to proscribed conduct under a single provision of a statute. It is a wholly different thing to evolve a rule of lenity for three violations of three separate offenses created by Congress at three different times, all to the end of dealing more and more strictly with, and seeking to throttle more and more by different legal devices, the traffic in narcotics. Both in the unfolding of the substantive provisions of law and in the scale of punishments, Congress has manifested an attitude not of lenity, but of severity, toward violation of the narcotics laws. Nor need we be detained by two other cases relied on, United States v. Universal C.I.T. Credit Corp., 344 U. S. 218, and Prince v. United States, 352 U. S. 322. In the former, we construed the recordkeeping provisions of the Fair Labor Standards Act as punishing "a course of conduct." Of Page 357 U. S. 392 the Prince case it suffices to say that the Court was dealing there "with a unique statute of limited purpose." 352 U.S. at 352 U. S. 325.Finally, we have had pressed upon us that the Blockburger doctrine offends the constitutional prohibition against double jeopardy. If there is anything to this claim, it surely has long been disregarded in decisions of this Court, participated in by judges especially sensitive to the application of the historic safeguard of double jeopardy. In applying a provision like that of double jeopardy, which is rooted in history and is not an evolving concept like that of due process, a long course of adjudication in this Court carries impressive authority. Certainly if punishment for each of separate offenses as those for which the petitioner here has been sentenced, and not merely different descriptions of the same offense, is constitutionally beyond the power of Congress to impose, not only Blockburger but at least the following cases would also have to be overruled: Carter v. McClaughry, 183 U. S. 365; Morgan v. Devine, 237 U. S. 632; Albrecht v. United States, 273 U. S. 1; Pinkerton v. United States, 328 U. S. 640; American Tobacco Co. v. United States, 328 U. S. 781; United States v. Michener, 331 U.S. 789; Pereira v. United States, 347 U. S. 1.Suppose Congress, instead of enacting the three provisions before us, had passed an enactment substantially in this form:"Anyone who sells drugs except from the original stamped package and who sells such drugs not in pursuance of a written order of the person to whom the drug is sold, and who does so by way of facilitating the concealment and sale of drugs knowing the same to have been unlawfully imported, shall be sentenced to not less than fifteen years' imprisonment: Provided, however, That if he makes such sale in pursuance of a written order of the person to whom the drug is sold he shall be sentenced to only ten years' imprisonment: Provided Page 357 U. S. 393 further, That if he sells such drugs in the original stamped package he shall also be sentenced to only ten years' imprisonment: And provided further, That if he sells such drugs in pursuance of a written order and from a stamped package, he shall be sentenced to only five years' imprisonment."Is it conceivable that such a statute would not be within the power of Congress? And is it rational to find such a statute constitutional, but to strike down the Blockburger doctrine as violative of the double jeopardy clause?In effect, we are asked to enter the domain of penology, and more particularly that tantalizing aspect of it, the proper apportionment of punishment. Whatever views may be entertained regarding severity of punishment, whether one believes in its efficacy or its futility, see Radzinowicz, The History of English Criminal Law: The Movement for Reform, 1750-1833, passim, these are peculiarly questions of legislative policy. Equally so are the much mooted problems relating to the power of the judiciary to review sentences. First the English and then the Scottish Courts of Criminal Appeal were given power to revise sentences, the power to increase as well as the power to reduce them. See 7 Edw. VII, c. 23, § 4(3); 16 & 17 Geo. V, c. 15, § 2(4). This Court has no such power.Affirmed

U.S. Supreme CourtGore v. United States, 357 U.S. 386 (1958)Gore v. United StatesNo. 668Argued May 19, 1958Decided June 30, 1958357 U.S. 386SyllabusConvicted in a federal court on six counts for violating three different sections of federal law by a single sale of narcotics on each of two different days, petitioner was sentenced to three consecutive terms for each day's sale, the terms for each day's sale to run concurrently with those for the other day's sale. He moved under 28 U.S.C. § 2255 to vacate the sentences as unlawful.Held: The sentences were not unlawful. Pp. 357 U. S. 387-393.(a) The Court adheres to the decision in Blockburger v. United States, 284 U. S. 299. Pp. 357 U. S. 388-393.(b) Though the three sections here involved grew out of a single purpose to outlaw nonmedicinal sales of narcotics, they grew out of three different laws enacted at different times, for each of which Congress has provided a separate punishment, and Congress did not intend that violations of all three should be treated as a single offense when committed through a single sale. Pp. 357 U. S. 390-391.(c) Bell v. United States, 349 U. S. 81, distinguished. Pp. 357 U. S. 391-392.(d) The result here reached does not offend the constitutional prohibition of double jeopardy. Pp. 357 U. S. 392-393.(e) The question of policy involved is for Congress to decide, and this Court has no power to increase or reduce sentences for such offenses. P. 357 U. S. 393.100 U.S.App.D.C. 315, 244 F.2d 763, affirmed. Page 357 U. S. 387

1986_85-1244

JUSTICE WHITE delivered the opinion of the Court.Appellant, Pleasant Grove, a city in Alabama that until recently had an all-white population, is covered by § 5 of the Voting Rights Act of 1965, 79 Stat. 439, as amended, 42 U.S.C. § 1973c, and accordingly must seek preclearance before instituting any change in a standard, practice, or procedure affecting voting. [Footnote 1] Appellant unsuccessfully sought preclearance by the Attorney General for the annexation of two parcels of land, one vacant and the other inhabited by a few whites. Appellant also failed to convince a three-judge District Court that the annexations did not have the purpose of abridging or denying the right to vote on account of race. We noted probable jurisdiction, 476 U.S. 1113 (1986), and now affirm. Page 479 U. S. 465IAppellant, whose population numbers approximately 7,000, was described by the District Court as "an all-white enclave in an otherwise racially mixed area of Alabama." [Footnote 2] 568 F. Supp. 1455, 1456 (DC 1983). The city has a long history of racial discrimination. The District Court's opinions chronicle the city's past discriminatory practices in some detail, and we will not repeat that history fully here. See 623 F. Supp. 782, 787-788 (DC 1985); 568 F. Supp. at 1456-1457. Suffice it to say that, in housing, zoning, hiring, and school policies, appellant's officials have shown unambiguous opposition to racial integration, both before and after the passage of the federal civil rights laws.The two annexations at issue in this case are the Glasgow Addition, a 40-acre parcel added in 1969, App. 7, and the Western Addition, a 450-acre area added in 1979. The Glasgow Addition was added at the request of its inhabitants, an extended white family who wished their children to attend appellant's newly formed, all-white school district, rather than the recently desegregated Jefferson County system. [Footnote 3] Page 479 U. S. 466 The Western Addition is uninhabited, but the District Court found that "its location and the City's plans [for relatively expensive housing] indicate that it is likely to be developed for use by white persons only." 623 F. Supp. at 784, n. 5.While approval of the Western Annexation was pending before the Alabama Legislature, appellant's City Council voted to withdraw fire and paramedic services that appellant was providing without charge to an adjacent black neighborhood known as Pleasant Grove Highlands (Highlands). In response, inhabitants of the Highlands, which has housing comparable to that in Pleasant Grove, petitioned for annexation to the city. The City Council restored free fire protection, but did not otherwise act on the petition. [Footnote 4] App. 18-19.Appellant sought preclearance for the annexation of the Western Addition, but the Attorney General objected because he found the refusal to annex the Highlands indicative of an intent to annex only white areas. [Footnote 5] The city then filed this declaratory action in the District Court for the District Page 479 U. S. 467 of Columbia. [Footnote 6] In denying appellant's motion for summary judgment, the court held, over one judge's dissent, that"a community may not annex adjacent white areas while applying a wholly different standard to black areas and failing to annex them based on that discriminatory standard."568 F. Supp. at 1460. In its subsequent decision on the merits, the court, with one judge dissenting, denied declaratory relief, holding that the city had failed to carry its burden of proving that the two annexations at issue did not have the purpose of abridging or denying the right to vote on account of race. [Footnote 7] This appeal followed.IIBefore addressing appellant's arguments, we find it useful to review two fundamental principles of the Voting Rights Act.First. An annexation of inhabited land constitutes a change in voting practice or procedure subject to preclearance under § 5. City of Richmond v. United States, 422 U. S. 358, 422 U. S. 368 (1975); Perkins v. Matthews, 400 U. S. 379, 400 U. S. 388 (1971). Even the annexation of vacant land on which residential development is anticipated must be precleared before those moving into the area may vote in the annexing jurisdiction. In City of Rome v. United States, 446 U. S. 156 (1980), this Court affirmed the denial of preclearance to 13 annexations, 9 of which were vacant land. See id. at 446 U. S. 194, 446 U. S. 196 (POWELL, J., dissenting); City of Rome, Ga. v. United States, 472 F. Supp. 221, 246 (DC 1979). This holding is consistent with the well established teaching of Allen v. State Board of Elections, 393 Page 479 U. S. 468 U.S. 544 (1969), that Congress intended the preclearance provisions of the Voting Rights Act to be given "the broadest possible scope," id. at 393 U. S. 567, and to reach "any state enactment which alter[s] the election law of a covered State in even a minor way," id. at 393 U. S. 566. Allowing a State to circumvent the preclearance requirement for annexations by annexing vacant land intended for white developments would disserve Congress' intent to reach "the subtle, as well as the obvious, state regulations which have the effect of denying citizens their right to vote because of their race." Id. at 393 U. S. 565. Moreover, the Attorney General, whose interpretation of the Voting Rights Act is entitled to considerable deference, see, e.g., United States v. Sheffield Board of Comm'rs, 435 U. S. 110, 435 U. S. 131 (1978), has consistently interpreted § 5 to reach the annexation of vacant land intended for residential development. [Footnote 8] Finally, Congress was aware of the Attorney General's view in this regard, and implicitly approved it when it reenacted the Voting Rights Act in 1982. [Footnote 9] Cf. id. at 435 U. S. 131-135. Page 479 U. S. 469Second. "Congress plainly intended that a voting practice not be precleared unless both discriminatory purpose and effect are absent." City of Rome, supra, at 446 U. S. 172 (emphasis in original). See also e.g., City of Richmond, supra, at 422 U. S. 378. The burden of proving absence of discriminatory purpose and effect is on appellant. See, e.g., City of Rome, supra, at 446 U. S. 183, n. 18.IIIThe city does not claim that either of the two annexations was not a change in voting practices subject to preclearance under § 5, even though the Western Addition was at the time uninhabited. [Footnote 10] Neither does it disagree that it must prove that the two annexations had neither the discriminatory purpose nor effect prohibited by § 5 of the Act. Its challenge is to the District Court's conclusion that the city had not carried its burden of showing that the annexations were untainted by a racially discriminatory purpose. In arriving at this judgment, the District Court relied on a variety of evidence, principally its finding that the refusal to annex the Highlands while annexing other areas was racially motivated. These findings, both as to the purpose of not annexing the Highlands and with respect to the weight of the evidence regarding the purpose of the two annexations at issue, are findings of fact that we must accept unless clearly erroneous. The city has not convinced us that they are. Page 479 U. S. 470Appellant insists, as it did below, that its failure to annex the Highlands was not racially motivated, but based upon economic considerations. The District Court found this justification "a mere pretext for race-biased annexation decisions." 623 F. Supp. at 784. The court found that appellant's economic argument was developed after the fact, and was not the true basis for the decision not to annex the Highlands. Id. at 784-785. Furthermore, the court found that appellant's argument did not reflect economic realities in a number of respects. For example, appellant's calculation of the costs of annexing the Highlands included the cost of services it was already providing gratis to that neighborhood. Id. at 786-787. Appellant also failed to consider that annexing the Highlands would generate immediate ad valorem taxes and possibly development fees from the construction of new homes. Id. at 786. At the same time, appellant's comparative estimate of the revenues that would be generated by the Western Addition failed to take into account such necessary costs as the construction of a new fire station, a major traffic artery, and a new neighborhood park. Id. at 787, n. 21. The District Court concluded that refusing to annex the Highlands was racially motivated.Appellant argues that, even if its decision not to annex the Highlands was racially motivated, that decision was not a change respecting voting, and hence not subject to § 5. That point is correct, but not dispositive; as the Solicitor General argues:"[T]he failure to annex [black] areas, while the city was simultaneously annexing non-black areas, is highly significant in demonstrating that the city's annexation here was purposefully designed to perpetuate Pleasant Grove as an enlarged enclave of white voters."Brief for United States 21, n. 12.Appellant also relies on the fact that there were no black voters in Pleasant Grove at the time the relevant annexation decisions were made, so that the annexations did not reduce the proportion of black voters or deny existing black voters Page 479 U. S. 471 representation equivalent to their political strength in the enlarged community. Cf. City of Richmond v. United States, 422 U.S. at 422 U. S. 370-371. Appellant contends that, since the annexations could not possibly have caused an impermissible effect on black voting, it makes no sense to say that appellant had a discriminatory purpose. This argument is based on the incorrect assumption that an impermissible purpose under § 5 can relate only to present circumstances. Section 5 looks not only to the present effects of changes, but to their future effects as well, as shown by the fact that annexations of vacant land are subject to preclearance even though no one's right to vote is immediately affected. See supra, at 479 U. S. 467-468, and n. 8. Likewise, an impermissible purpose under § 5 may relate to anticipated as well as present circumstances. [Footnote 11]It is quite plausible to see appellant's annexation of the Glasgow and Western Additions as motivated, in part, by the impermissible purpose of minimizing future black voting Page 479 U. S. 472 strength. [Footnote 12] Common sense teaches that appellant cannot indefinitely stave off the influx of black residents and voters -- indeed, the process of integration, long overdue, has already begun. See supra at 479 U. S. 465, n. 2. One means of thwarting this process is to provide for the growth of a monolithic white voting block, thereby effectively diluting the black vote in advance. This is just as impermissible a purpose as the dilution of present black voting strength. Cf. City of Richmond, supra, at 422 U. S. 378. To hold otherwise would make appellant's extraordinary success in resisting integration thus far a shield for further resistance. Nothing could be further from the purposes of the Voting Rights Act.In light of the record before us, we are not left with the definite and firm conviction that the District Court was mistaken either in finding that the refusal to annex the Highlands was racially motivated or that there was insufficient proof that the annexation of the Glasgow and Western Additions did not have a purpose forbidden by § 5. Those findings are not, therefore, clearly erroneous. Anderson v. Bessemer City, 470 U. S. 564 (1985).The judgment of the District Court is accordinglyAffirmed

U.S. Supreme CourtCity of Pleasant Grove v. United States, 479 U.S. 462 (1987)City of Pleasant Grove v. United StatesNo. 86-1244Argued December 10, 1986Decided January 21, 1987479 U.S. 462SyllabusAppellant, an Alabama city that has a long history of racial discrimination and that until recently had an all-white population, is covered by § 6 of the Voting Rights Act of 1966 (Act), and accordingly must seek preclearance before instituting any change in a standard, practice, or procedure affecting voting. Appellant sought approval by the Attorney General for the annexation of two parcels of land, one vacant (hereinafter called the Western Addition) and the other (Glasgow Addition) added at the request of its inhabitants, an extended white family who wished their children to attend appellant's then all-white school system. The Attorney General objected to the annexations, finding with respect to the Western Addition that appellant's refusal to annex an adjacent black neighborhood (Highlands) was indicative of an intent to annex only white areas. Pursuant to § 5 of the Act, appellant then filed this declaratory action in the United States District Court for the District of Columbia, which denied relief, finding that the Western Addition's location and appellant's plans for relatively expensive housing there indicated that it was likely to be developed for use by white persons only. The court further found that appellant failed to carry its burden of proving that the annexations at issue did not have the purpose of abridging or denying the right to vote on account of race.Held:1. Fundamental principles of the Act, governing this case, are that an annexation of inhabited land constitutes a change in voting practice or procedure subject to preclearance under § 5, and even the annexation of vacant land on which residential development is anticipated must be precleared before those moving into the area may vote in the annexing jurisdiction. Moreover, Congress intended that a voting practice not be precleared unless both discriminatory purpose and effect are absent, and the burden of proving absence of discriminatory purpose and effect is on the covered jurisdiction. Pp. 479 U. S. 467-469.2. There is no merit to appellant's contention that the District Court erred in concluding that appellant had not carried its burden of showing that the annexations were untainted by a racially discriminatory purpose. In arriving at its decision, the District Court relied on a variety of evidence, principally its finding that the refusal to annex the Highlands Page 479 U. S. 463 while annexing other areas was racially motivated, rather than, as appellant asserted, based upon economic considerations. The court's findings, both as to the purpose of not annexing the Highlands and with respect to the weight of the evidence regarding the purpose of the two annexations at issue, are findings of fact that must be accepted unless clearly erroneous, and appellant has not established that they are clearly erroneous. Appellant's argument that, even if its decision not to annex the Highlands was racially motivated, such decision was not a change respecting voting, and hence was not subject to § 5, is correct, but not dispositive. The failure to annex black areas while simultaneously annexing nonblack areas is highly significant in demonstrating that appellant's annexations were purposefully designed to perpetuate it as an enlarged enclave of white voters. Moreover, the contention that, since appellant had no black voters at the time of the annexations, they could not have caused an impermissible effect on black voting, and thus it cannot be concluded that appellant had a discriminatory purpose, is based on the incorrect assumption that an impermissible purpose under § 5 can relate only to present circumstances. Section 5 looks not only to the present effects of changes, but to their future effects as well, and, likewise, an impermissible purpose under § 5 may relate to anticipated as well as present circumstances. Pp. 479 U. S. 469-472.623 F. Supp. 782, affirmed.WHITE, J., delivered the opinion of the Court, in which BRENNAN, MARSHALL, BLACKMUN, STEVENS, and SCALIA, JJ., joined. POWELL, J., filed a dissenting opinion, in which REHNQUIST, C.J., and O'CONNOR, J., joined, post, 479 U. S. 472. Page 479 U. S. 464

1998_97-1139

Ephrain Avendano, during the search. In pursuit of the dealer, the distributor and his henchmen drove from Texas to New Jersey with Avendano in tow. The group used Avendano's New Jersey apartment as a base for their operations for a few days. They soon moved to a house in New York and then to a house in Maryland, taking Avendano with them.Shortly after respondent and the others arrived at the Maryland house, the owner of the home passed around a .357 magnum revolver and respondent took possession of the pistol. As it became clear that efforts to find the New York drug dealer would not bear fruit, respondent told his employer that he thought they should kill the middleman and end their search for the dealer. He put the gun to the back of Avendano's neck but, at the urging of his cohorts, did not shoot. Avendano eventually escaped through the back door and ran to a neighboring house. The neighbors called the Maryland police, who arrested respondent along with the rest of the kidnapers. The police also seized the .357 magnum, on which they later found respondent's fingerprint.Rodriguez-Moreno and his codefendants were tried jointly in the United States District Court for the District of New Jersey. Respondent was charged with, inter alia, conspiring to kidnap Avendano, kidnaping Avendano, and using and carrying a firearm in relation to the kidnaping of Avendano, in violation of 18 U. S. C. § 924(c)(1). At the conclusion of the Government's case, respondent moved to dismiss the § 924(c)(1) count for lack of venue. He argued that venue was proper only in Maryland, the only place where the Government had proved he had actually used a gun. The District Court denied the motion, App. 54, and the jury found respondent guilty on the kidnaping counts and on the § 924(c)(1) charge as well. He was sentenced to 87 months' imprisonment on the kidnaping charges, and was given a mandatory consecutive term of 60 months' imprisonment for committing the § 924(c)(1) offense.278On a 2-to-l vote, the Court of Appeals for the Third Circuit reversed respondent's § 924(c)(1) conviction. United States v. Palma-Ruedas, 121 F.3d 841 (1997). A majority of the Third Circuit panel applied what it called the "verb test" to § 924(c)(1), and determined that a violation of the statute is committed only in the district where a defendant "uses" or "carries" a firearm. Id., at 849. Accordingly, it concluded that venue for the § 924(c)(1) count was improper in New Jersey even though venue was proper there for the kidnaping of Avendano. The dissenting judge thought that the majority's test relied too much "on grammatical arcana," id., at 865, and argued that the proper approach was to "look at the substance of the statutes in question," ibid. In his view, the crime of violence is an essential element of the course of conduct that Congress sought to criminalize in enacting § 924(c)(1), and therefore, "venue for a prosecution under [that] statute lies in any district in which the defendant committed the underlying crime of violence." Id., at 863. The Government petitioned for review on the ground that the Third Circuit's holding was in conflict with a decision of the Court of Appeals for the Fifth Circuit, United States v. Pomranz, 43 F.3d 156 (1995). We granted certiorari, 524 U. S. 915 (1998), and now reverse.IIArticle III of the Constitution requires that "[t]he Trial of all Crimes ... shall be held in the State where the said Crimes shall have been committed." Art. III, § 2, cl. 3. Its command is reinforced by the Sixth Amendment's requirement that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed," and is echoed by Rule 18 of the Federal Rules of Criminal Procedure ("prosecution shall be had in a district in which the offense was committed").279As we confirmed just last Term, the" 'locus delicti [of the charged offense] must be determined from the nature of the crime alleged and the location of the act or acts constituting it.'" United States v. Cabrales, 524 U. S. 1,6-7 (1998) (quoting United States v. Anderson, 328 U. S. 699, 703 (1946)).1 In performing this inquiry, a court must initially identify the conduct constituting the offense (the nature of the crime) and then discern the location of the commission of the criminal acts.2 See Cabrales, supra, at 6-7; Travis v. United States, 364 U. S. 631, 635-637 (1961); United States v. Cores, 356 U. S. 405, 408-409 (1958); Anderson, supra, at 703-706.At the time respondent committed the offense and wastried, 18 U. S. C. § 924(c)(1) provided:"Whoever, during and in relation to any crime of violence ... for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence ... be sentenced to imprisonment for five years ... "3The Third Circuit, as explained above, looked to the verbs of the statute to determine the nature of the substantive of-1 When we first announced this test in United States v. Anderson, 328 U. S., at 703, we were comparing § 11 of the Selective Training and Service Act of 1940, 54 Stat. 894, in which Congress did "not indicate where [it] considered the place of committing the crime to be," 328 U. S., at 703, with statutes where Congress was explicit with respect to venue. Title 18 U. S. C. § 924(c)(I), like the Selective Training and Service Act, does not contain an express venue provision.2 The Government argues that venue also may permissibly be based upon the effects of a defendant's conduct in a district other than the one in which the defendant performs the acts constituting the offense. Brief for United States 16-17. Because this case only concerns the locus delicti, we express no opinion as to whether the Government's assertion is correct.3 The statute recently has been amended, see Pub. L. 105-386, 112 Stat. 3469, but it is not argued that the amendment is in any way relevant to our analysis in this case.280fense. But we have never before held, and decline to do so here, that verbs are the sole consideration in identifying the conduct that constitutes an offense. While the "verb test" certainly has value as an interpretative tool, it cannot be applied rigidly, to the exclusion of other relevant statutory language. The test unduly limits the inquiry into the nature of the offense and thereby creates a danger that certain conduct prohibited by statute will be missed.In our view, the Third Circuit overlooked an essential conduct element of the § 924(c)(1) offense. Section 924(c)(1) prohibits using or carrying a firearm "during and in relation to any crime of violence ... for which [a defendant] may be prosecuted in a court of the United States." That the crime of violence element of the statute is embedded in a prepositional phrase and not expressed in verbs does not dissuade us from concluding that a defendant's violent acts are essential conduct elements. To prove the charged § 924(c)(1) violation in this case, the Government was required to show that respondent used a firearm, that he committed all the acts necessary to be subject to punishment for kidnaping (a crime of violence) in a court of the United States, and that he used the gun "during and in relation to" the kidnaping of Avendano. In sum, we interpret § 924(c)(1) to contain two distinct conduct elements-as is relevant to this case, the "using and carrying" of a gun and the commission of a kidnaping.44 By way of comparison, last Term in United States v. Cabrales, 524 U. S. 1 (1998), we considered whether venue for money laundering, in violation of 18 U. S. C. §§ 1956(a)(I)(B)(ii) and 1957, was proper in Missouri, where the laundered proceeds were unlawfully generated, or rather, only in Florida, where the prohibited laundering transactions occurred. As we interpreted the laundering statutes at issue, they did not proscribe "the anterior criminal conduct that yielded the funds allegedly laundered." Cabrales, 524 U. S., at 7. The existence of criminally generated proceeds was a circumstance element of the offense but the proscribed conductdefendant's money laundering activity-occurred "'after the fact' of an offense begun and completed by others." Ibid. Here, by contrast, given281Respondent, however, argues that for venue purposes "the New Jersey kidnapping is completely irrelevant to the firearm crime, because respondent did not use or carry a gun during the New Jersey crime." Brief for Respondent 12. In the words of one amicus, § 924(c)(1) is a "point-in-time" offense that only is committed in the place where the kidnaping and the use of a gun coincide. Brief for National Association of Criminal Defense Lawyers as Amicus Curiae 11. We disagree. Several Circuits have determined that kidnaping, as defined by 18 U. S. C. § 1201 (1994 ed. and Supp. III), is a unitary crime, see United States v. Seals, 130 F.3d 451, 461-462 (CADC 1997); United States v. Denny-Shaffer, 2 F.3d 999,1018-1019 (CAlO 1993); United States v. Godinez, 998 F.2d 471, 473 (CA7 1993); United States v. Garcia, 854 F. 2d 340, 343-344 (CA9 1988), and we agree with their conclusion. A kidnaping, once begun, does not end until the victim is free. It does not make sense, then, to speak of it in discrete geographic fragments. Section 924(c)(1) criminalized a defendant's use of a firearm "during and in relation to" a crime of violence; in doing so, Congress proscribed both the use of the firearm and the commission of acts that constitute a violent crime. It does not matter that respondent used the .357 magnum revolver, as the Government concedes, only in Maryland because he did so "during and in relation to" a kidnaping that was begun in Texas and continued in New York, New Jersey, and Maryland. In our view, § 924(c)(1) does not define a "point-in-time" offense when a firearm is used during and in relation to a continuing crime of violence.As we said in United States v. Lombardo, 241 U. S. 73 (1916), "where a crime consists of distinct parts which have different localities the whole may be tried where any part can be proved to have been done." Id., at 77; cf. Hyde v. United States, 225 U. S. 347, 356-367 (1912) (venue properthe "during and in relation to" language, the underlying crime of violence is a critical part of the § 924(c)(1) offense.282against defendant in district where co-conspirator carried out overt acts even though there was no evidence that the defendant had ever entered that district or that the conspiracy was formed there). The kidnaping, to which the § 924(c)(1) offense is attached, was committed in all of the places that any part of it took place, and venue for the kidnaping charge against respondent was appropriate in any of them. (Congress has provided that continuing offenses can be tried "in any district in which such offense was begun, continued, or completed," 18 U. S. C. § 3237(a).) Where venue is appropriate for the underlying crime of violence, so too it is for the § 924(c)(1) offense. As the kidnaping was properly tried in New Jersey, the § 924(c)(1) offense could be tried there as well.***We hold that venue for this prosecution was proper in the district where it was brought. The judgment of the Court of Appeals is therefore reversed.It is so ordered

OCTOBER TERM, 1998SyllabusUNITED STATES v. RODRIGUEZ-MORENOCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUITNo. 97-1139. Argued December 7, 1998-Decided March 30,1999A drug distributor hired respondent and others to find a New York drug dealer who stole cocaine from him during a Texas drug transaction and to hold captive the middleman in the transaction, Ephrain Avendano, during the search. The group drove from Texas to New Jersey to New York to Maryland, taking Avendano with them. Respondent took possession of a revolver in Maryland and threatened to kill Avendano. Avendano eventually escaped and called police, who arrested respondent and the others. Respondent was charged in a New Jersey District Court with, inter alia, using and carrying a firearm in relation to Avendano's kidnaping, in violation of 18 U. S. C. § 924(c)(I). He moved to dismiss that count, arguing that venue was proper only in Maryland, the only place where the Government had proved he had actually used a gun. The court denied the motion, and respondent was convicted of the § 924(c)(I) offense. The Third Circuit reversed. After applying what it called the "verb test," it determined that venue was proper only in the district where a defendant actually uses or carries a firearm.Held: Venue in a prosecution for using or carrying a firearm "during and in relation to any crime of violence" in violation of § 924(c)(I) is proper in any district where the crime of violence was committed. Under the locus delicti test, a court must initially identify the conduct constituting the offense (the nature of the offense) and then discern where the criminal acts occurred. See United States v. Cabrales, 524 U. S. 1,6-7. Although the Third Circuit relied on the statute's verbs to determine the nature of the offense, this Court has never held that verbs are the sole consideration, to the exclusion of other relevant statutory language. A defendant's violent acts are essential conduct elements of the § 924(c)(I) offense despite being embedded in the prepositional phrase, "during and in relation to any crime of violence." Thus, the statute contains two distinct conduct elements-as is relevant to this case, using and carrying a gun and committing a kidnaping. Where a crime consists of distinct parts which have different localities, venue is proper for the whole charge where any part can be proved to have been committed. See United States v. Lombardo, 241 U. S. 73. Respondent's argument that § 924(c)(I) is a "point-in-time" offense that only is committed in the place where the kidnaping and use of a gun coincide is unpersuasive. Kidnap-276ing is a unitary crime, which, once begun, does not end until the victim is free. It does not matter that respondent used the gun only in Maryland because he did so "during and in relation to" a kidnaping that began in Texas and continued in New York, New Jersey, and Maryland. The kidnaping, to which the § 924(c)(1) offense is attached, was committed in all of the places that any part of it took place, and venue for the kidnaping charge was appropriate in any of them. Where venue is appropriate for the underlying crime of violence, so too it is for the § 924(c)(1) offense. pp. 278-282.121 F.3d 841, reversed.THOMAS, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O'CONNOR, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. SCALIA, J., filed a dissenting opinion, in which STEVENS, J., joined, post, p. 282.Paul R. Q. Wolfson argued the cause for the United States. With him on the briefs were Solicitor General Waxman, Assistant Attorney General Robinson, Deputy Solicitor General Dreeben, and Daniel S. Goodman.John P. McDonald, by appointment of the Court, 525 U. S. 806, argued the cause for respondent. With him on the brief were Jeffrey T. Green and Robert C. Nissen. *JUSTICE THOMAS delivered the opinion of the Court.This case presents the question whether venue in a prosecution for using or carrying a firearm "during and in relation to any crime of violence," in violation of 18 U. S. C. § 924(c)(1), is proper in any district where the crime of violence was committed, even if the firearm was used or carried only in a single district.IDuring a drug transaction that took place in Houston, Texas, a New York drug dealer stole 30 kilograms of a Texas drug distributor's cocaine. The distributor hired respondent, Jacinto Rodriguez-Moreno, and others to find the dealer and to hold captive the middleman in the transaction,* Steven Wisotsky and Lisa Kemler filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae urging affirmance.277Full Text of Opinion

1983_82-1041

CHIEF JUSTICE BURGER delivered the opinion of the Court.We granted certiorari to resolve a conflict among the Circuits as to whether intrafamily, interest-free demand loans result in taxable gifts of the value of the use of the money lent.IAPaul and Esther Dickman were husband and wife; Lyle Dickman was their son. Paul, Esther, Lyle, and Lyle's wife Page 465 U. S. 332 and children were the owners of Artesian Farm, Inc. (Artesian), a closely held Florida corporation. Between 1971 and 1976, Paul and Esther loaned substantial sums to Lyle and Artesian. Over this 5-year interval, the outstanding balances for the loans from Paul to Lyle varied from $144,715 to $342,915; with regard to Paul's loans to Artesian, the outstanding balances ranged from $207,875 to $669,733. During the same period, Esther loaned $226,130 to Lyle and $68,651 to Artesian. With two exceptions, all the loans were evidenced by demand notes bearing no interest. [Footnote 1]Paul Dickman died in 1976, leaving a gross estate for federal estate tax purposes of $3,464,011. The Commissioner of Internal Revenue audited Paul Dickman's estate and determined that the loans to Lyle and Artesian resulted in taxable gifts to the extent of the value of the use of the loaned funds. [Footnote 2] The Commissioner then issued statutory notices of gift tax deficiency both to Paul Dickman's estate and to Esther Dickman [Footnote 3] Page 465 U. S. 333Esther Dickman and the estate, petitioners here, sought redetermination of the deficiencies in the Tax Court. Reaffirming its earlier decision in Crown v. Commissioner, 67 T.C. 1060 (1977), aff'd, 585 F.2d 234 (CA7 1978), the Tax Court concluded that intrafamily, interest-free demand loans do not result in taxable gifts. 41 TCM 620, 623 (1980), � 80,575 P-H Memo TC at 2428. Because the Tax Court determined that all the loans to Lyle and Artesian were made payable on demand, it held that the loans were not subject to the federal gift tax. Id. at 624, � 80,575 P-H Memo TC at 2428.BThe United States Court of Appeals for the Eleventh Circuit reversed, holding that gratuitous interest-free demand loans give rise to gift tax liability. 690 F.2d 812, 819 (1982). Reviewing the language and history of the gift tax provisions of the Internal Revenue Code of 1954 (Code), 26 U.S.C. § 2501 et seq., the Court of Appeals concluded that Congress intended the gift tax to have the broadest and most comprehensive coverage possible. The court reasoned that the making of an interest-free demand loan constitutes a "transfer of property by gift" within the meaning of 26 U.S.C. § 2501(a)(1), and accordingly is subject to the gift tax provisions of the Code. In so holding, the Court of Appeals squarely rejected the contrary position adopted by the United States Court of Appeals for the Seventh Circuit in Crown v. Commissioner, 585 F.2d 234 (1978). We granted certiorari to resolve this conflict, 459 U.S. 1199 (1983); we affirm.IIAThe statutory language of the federal gift tax provisions purports to reach any gratuitous transfer of any interest in property. Section 2501(a)(1) of the Code imposes a tax upon "the transfer of property by gift." Section 2511(a) highlights Page 465 U. S. 334 the broad sweep of the tax imposed by § 2501, providing in pertinent part:"Subject to the limitations contained in this chapter, the tax imposed by section 2501 shall apply whether the transfer is in trust or otherwise, whether the gift is direct or indirect, and whether the property is real or personal, tangible or intangible. . . ."The language of these statutes is clear, and admits of but one reasonable interpretation: transfers of property by gift, by whatever means effected, are subject to the federal gift tax.The Committee Reports accompanying the Revenue Act of 1932, ch. 209, 47 Stat. 169, which established the present scheme of federal gift taxation, make plain that Congress intended the gift tax statute to reach all gratuitous transfers of any valuable interest in property. Among other things, these Reports state:"The terms 'property,' 'transfer,' 'gift,' and 'indirectly' are used in the broadest and most comprehensive sense; the term 'property' reaching every species of right or interest protected by law and having an exchangeable value.""The words 'transfer . . . by gift' and 'whether . . . direct or indirect' are designed to cover and comprehend all transactions . . . whereby, and to the extent . . . that, property or a property right is donatively passed to or conferred upon another, regardless of the means or the device employed in its accomplishment."H.R.Rep. No. 708, 72d Cong., 1st Sess., 27-28 (1932); S.Rep. No. 665, 72d Cong., 1st Sess., 39 (1932). The plain language of the statute reflects this legislative history; the gift tax was designed to encompass all transfers of property and property rights having significant value. [Footnote 4] Page 465 U. S. 335On several prior occasions, this Court has acknowledged the expansive sweep of the gift tax provisions. In Commissioner v. Wemyss, 324 U. S. 303, 324 U. S. 306 (1945), the Court explained that"Congress intended to use the term 'gifts' in its broadest and most comprehensive sense . . . [in order] to hit all the protean arrangements which the wit of man can devise that are not business transactions within the meaning of ordinary speech."The Court has also noted that the language of the gift tax statute "is broad enough to include property, however conceptual or contingent," Smith v. Shaughnessy, 318 U. S. 176, 318 U. S. 180 (1943), so as "to reach every kind and type of transfer by gift," Robinette v. Helvering, 318 U. S. 184, 318 U. S. 187 (1943). Thus, the decisions of this Court reinforce the view that the gift tax should be applied broadly to effectuate the clear intent of Congress.BIn asserting that interest-free demand loans give rise to taxable gifts, the Commissioner does not seek to impose the gift tax upon the principal amount of the loan, but only upon the reasonable value of the use of the money lent. The taxable gift that assertedly results from an interest-free demand loan is the value of receiving and using the money without incurring a corresponding obligation to pay interest along with the loan's repayment. [Footnote 5] Is such a gratuitous transfer of the Page 465 U. S. 336 right to use money a "transfer of property" within the intendment of § 2501(a)(1)?We have little difficulty accepting the theory that the use of valuable property -- in this case money -- is itself a legally protectible property interest. Of the aggregate rights associated with any property interest, the right of use of property is perhaps of the highest order. One court put it succinctly:"'Property' is more than just the physical thing -- the land, the bricks, the mortar -- it is also the sum of all the rights and powers incident to ownership of the physical thing. It is the tangible and the intangible. Property is composed of constituent elements, and, of these elements, the right to use the physical thing to the exclusion of others is the most essential and beneficial. Without this right, all other elements would be of little value. . . ."Passailaigue v. United States, 224 F. Supp. 682, 686 (MD Ga.1963) (emphasis in original). [Footnote 6]What was transferred here was the use of a substantial amount of cash for an indefinite period of time. An analogous interest in real property, the use under a tenancy at will, has long been recognized as a property right. E.g., Restatement (Second) of Property § 1.6 (1977); 3 G. Thompson, Commentaries on the Modern Law of Real Property § 1020 (J. Grimes ed.1980). For example, a parent who grants to a child the rent-free, indefinite use of commercial property having a reasonable rental value of $8,000 a month has clearly transferred a valuable property right. The Page 465 U. S. 337 transfer of $100,000 in cash, interest-free and repayable on demand, is similarly a grant of the use of valuable property. Its uncertain tenure may reduce its value, but it does not undermine its status as property. In either instance, when the property owner transfers to another the right to use the object, an identifiable property interest has clearly changed hands.The right to the use of $100,000 without charge is a valuable interest in the money lent, as much so as the rent-free use of property consisting of land and buildings. In either case, there is a measurable economic value associated with the use of the property transferred. The value of the use of money is found in what it can produce; the measure of that value is interest -- "rent" for the use of the funds. We can assume that an interest-free loan for a fixed period, especially for a prolonged period, may have greater value than such a loan made payable on demand, but it would defy common human experience to say that an intrafamily loan payable on demand is not subject to accommodation; its value may be reduced by virtue of its demand status, but that value is surely not eliminated.This Court has noted in another context that the making of an interest-free loan results in the transfer of a valuable economic right:"It is virtually self-evident that extending interest-free credit for a period of time is equivalent to giving a discount equal to the value of the use of the purchase price for that period of time."Catalano, Inc. v. Target Sales, Inc., 446 U. S. 643, 446 U. S. 648 (1980) (per curiam).Against this background, the gift tax statutes clearly encompass within their broad sweep the gratuitous transfer of the use of money. Just as a tenancy at will in real property is an estate or interest in land, so also is the right to use money a cognizable interest in personal property. The right to use money is plainly a valuable right, readily measurable by reference to current interest rates; the vast banking industry Page 465 U. S. 338 is positive evidence of this reality. Accordingly, we conclude that the interest-free loan of funds is a "transfer of property by gift" within the contemplation of the federal gift tax statutes. [Footnote 7]COur holding that an interest-free demand loan results in a taxable gift of the use of the transferred funds is fully consistent with one of the major purposes of the federal gift tax statute: protection of the estate tax and the income tax. The legislative history of the gift tax provisions reflects that Congress enacted a tax on gifts to supplement existing estate and income tax laws. H.R.Rep. No. 708, at 28; S.Rep. No. 665, at 40; see also 65 Cong.Rec. 3119-3120, 8095-8096 (1924); Harriss, Legislative History of Federal Gift Taxation, 18 Taxes 531, 536 (1940). Failure to impose the gift tax on interest-free loans would seriously undermine this estate and income tax protection goal. Page 465 U. S. 339A substantial no-interest loan from parent to child creates significant tax benefits for the lender quite apart from the economic advantages to the borrower. This is especially so when an individual in a high income tax bracket transfers income-producing property to an individual in a lower income tax bracket, thereby reducing the taxable income of the high-bracket taxpayer at the expense, ultimately, of all other taxpayers and the Government. Subjecting interest-free loans to gift taxation minimizes the potential loss to the federal fisc generated by the use of such loans as an income tax avoidance mechanism for the transferor. Gift taxation of interest-free loans also effectuates Congress' desire to supplement the estate tax provisions. A gratuitous transfer of income-producing property may enable the transferor to avoid the future estate tax liability that would result if the earnings generated by the property -- rent, interest, or dividends -- became a part of the transferor's estate. Imposing the gift tax upon interest-free loans bolsters the estate tax by preventing the diminution of the transferor's estate in this fashion.IIIPetitioners contend that administrative and equitable considerations require a holding that no gift tax consequences result from the making of interest-free demand loans. In support of this position, petitioners advance several policy arguments; none withstands studied analysis.APetitioners first advance an argument accepted by the Tax Court in Crown v. Commissioner:"[O]ur income tax system does not recognize unrealized earnings or accumulations of wealth, and no taxpayer is under any obligation to continuously invest his money for a profit. The opportunity cost of either letting one's money remain idle or suffering a loss from an unwise investment is not taxable merely because a profit could Page 465 U. S. 340 have been made from a wise investment."67 T.C. at 1063-1064. Thus, petitioners argue, an interest-free loan should not be made subject to the gift tax simply because of the possibility that the money lent might have enhanced the transferor's taxable income or gross estate had the loan never been made.This contention misses the mark. It is certainly true that no law requires an individual to invest his property in an income-producing fashion, just as no law demands that a transferor charge interest or rent for the use of money or other property. An individual may, without incurring the gift tax, squander money, conceal it under a mattress, or otherwise waste its use value by failing to invest it. Such acts of consumption have nothing to do with lending money at no interest. The gift tax is an excise tax on transfers of property; allowing dollars to lie idle involves no transfer. If the taxpayer chooses not to waste the use value of money, however, but instead transfers the use to someone else, a taxable event has occurred. That the transferor himself could have consumed or wasted the use value of the money without incurring the gift tax does not change this result. Contrary to petitioners' assertion, a holding in favor of the taxability of interest-free loans does not impose upon the transferor a duty profitably to invest; rather, it merely recognizes that certain tax consequences inevitably flow from a decision to make a "transfer of property by gift." 26 U.S.C. § 2501(a)(1).BPetitioners next attack the breadth of the Commissioner's view that interest-free demand loans give rise to taxable gifts. Carried to its logical extreme, petitioners argue, the Commissioner's rationale would elevate to the status of taxable gifts such commonplace transactions as a loan of the proverbial cup of sugar to a neighbor or a loan of lunch money to a colleague. Petitioners urge that such a result is an untenable intrusion by the Government into cherished zones Page 465 U. S. 341 of privacy, particularly where intrafamily transactions are involved.Our laws require parents to provide their minor offspring with the necessities and conveniences of life; questions under the tax law often arise, however, when parents provide more than the necessities, and in quantities significant enough to attract the attention of the taxing authorities. Generally, the legal obligation of support terminates when the offspring reach majority. Nonetheless, it is not uncommon for parents to provide their adult children with such things as the use of cars or vacation cottages, simply on the basis of the family relationship. We assume that the focus of the Internal Revenue Service is not on such traditional familial matters. When the Government levies a gift tax on routine neighborly or familial gifts, there will be time enough to deal with such a case.Moreover, the tax law provides liberally for gifts to both family members and others; within the limits of the prescribed statutory exemptions, even substantial gifts may be entirely tax free. First, under § 2503(e) of the Code, 26 U.S.C. § 2503(e) (1982 ed.), amounts paid on behalf of an individual for tuition at a qualified educational institution or for medical care are not considered "transfer[s] of property by gift" for purposes of the gift tax statutes. More significantly, § 2503(b) of the Code provides an annual exclusion from the computation of taxable gifts of $10,000 per year, per donee; this provision allows a taxpayer to give up to $10,000 annually to each of any number of persons, without incurring any gift tax liability. [Footnote 8] The "split gift" provision of Code § 2513(a), which effectively enables a husband and wife to give each object of their bounty $20,000 per year without Page 465 U. S. 342 liability for gift tax, further enhances the ability to transfer significant amounts of money and property free of gift tax consequences. [Footnote 9] Finally, should a taxpayer make gifts during one year that exceed the § 2503(b) annual gift tax exclusion, no gift tax liability will result until the unified credit of Code § 2505 has been exhausted. [Footnote 10] These generous exclusions, exceptions, and credits clearly absorb the sorts of de minimis gifts petitioners envision, and render illusory the administrative problems that petitioners perceive in their "parade of horribles."CFinally, petitioners urge that the Commissioner should not be allowed to assert the gift taxability of interest-free demand loans because such a position represents a departure from prior Internal Revenue Service practice. This contention rests on the fact that, prior to 1966, the Commissioner had not construed the gift tax statutes and regulations to authorize the levying of a gift tax on the value of the use of money or property. See Crown v. Commissioner, 585 F.2d at 241; Johnson v. United States, 254 F. Supp. 73 (ND Tex.1966). From this they argue that it is manifestly Page 465 U. S. 343 unfair to permit the Commissioner to impose the gift tax on the transactions challenged here.Even accepting the notion that the Commissioner's present position represents a departure from prior administrative practice, which is by no means certain, [Footnote 11] it is well established that the Commissioner may change an earlier interpretation of the law, even if such a change is made retroactive in effect. E.g., Dixon v. United States, 381 U. S. 68, 381 U. S. 72-75 (1965); Automobile Club of Michigan v. Commissioner, 353 U. S. 180, 353 U. S. 183-184 (1957). This rule applies even though a taxpayer may have relied to his detriment upon the Commissioner's prior position. Dixon v. United States, supra, at 381 U. S. 73. The Commissioner is under no duty to assert a particular position as soon as the statute authorizes such an interpretation. [Footnote 12] See also Bob Jones University v. United States, 461 U. S. 574 (1983). Accordingly, petitioners' "taxpayer reliance" argument is unavailing. [Footnote 13] Page 465 U. S. 344IVAs we have noted, supra at 465 U. S. 341-342, Congress has provided generous exclusions and credits designed to reduce the gift tax liability of the great majority of taxpayers. Congress clearly has the power to provide a similar exclusion for the gifts that result from interest-free demand loans. Any change in the gift tax consequences of such loans, however, is a legislative responsibility, not a judicial one. Until such a change occurs, we are bound to effectuate Congress' intent to protect the estate and income tax systems with a broad and comprehensive tax upon all "transfer[s] of property by gift." Cf. Diedrich v. Commissioner, 457 U. S. 191, 457 U. S. 199 (1982).We hold, therefore, that the interest-free demand loans shown by this record resulted in taxable gifts of the reasonable value of the use of the money lent. [Footnote 14] Accordingly, the Page 465 U. S. 345 judgment of the United States Court of Appeals for the Eleventh Circuit isAffirmed

U.S. Supreme CourtDickman v. Commissioner, 465 U.S. 330 (1984)Dickman v. Commissioner of Internal RevenueNo. 82-1041Argued November 1, 1983Decided February 22, 1984465 U.S. 330SyllabusSection 2501(a)(1) of the Internal Revenue Code of 1954 imposes a tax upon "the transfer of property by gift." Section 2511(a) provides that such tax shall apply whether "the transfer is in trust or otherwise, whether the gift is direct or indirect, and whether the property is real or personal, tangible or intangible." Petitioner wife and her husband, now deceased, made substantial interest-free demand loans to their son and a closely held family corporation. The Commissioner of Internal Revenue determined that the loans resulted in taxable gifts to the extent of the value of the use of the loaned funds, and assessed gift tax deficiencies. Petitioner wife and petitioner personal representative of her husband sought redetermination of the deficiencies in the Tax Court, which held that the loans were not subject to the gift tax. The Court of Appeals reversed.Held: The loans in question resulted in taxable gifts of the reasonable value of the use of the money lent. Pp. 465 U. S. 333-344.(a) The language of §§ 2501(a)(1) and 2511(a) is clear, and admits of only one reasonable interpretation: transfers of property by gift, by whatever means effected, are subject to the federal gift tax. The gift tax was designed to encompass all transfers of property and property rights having significant value. Pp. 465 U. S. 333-335.(b) The interest-free loan of funds is a "transfer of property by gift" within the contemplation of the Code. The transfer of cash, interest-free and repayable on demand, is a grant of the use of valuable property. And the right to use the money without charge is a valuable interest in the money lent, although the value of such interest may be reduced by virtue of its demand status. Pp. 465 U. S. 335-338.(c) Failure to impose the gift tax on interest-free loans would seriously undermine Congress' goal in enacting the gift tax as a protection against income tax avoidance by the transferor and as a supplement to the estate tax. Pp. 465 U. S. 338-339.(d) Subjecting interest-free loans to the gift tax does not impose upon the transferor a duty to invest profitably, but rather merely recognizes that certain tax consequences flow from a decision to make "a transfer of property by gift." Pp. 465 U. S. 339-340. Page 465 U. S. 331(e) There is no merit to petitioners' contention that imposing a gift tax on interest-free loans could result in imposing the tax on routine neighborly or familial gifts, thus intruding into cherished zones of privacy. Any such administrative problems are rendered illusory by the generous exclusions, exceptions, and credits provided by the Code for gifts to both family members and others. Pp. 465 U. S. 340-342.(f) Assuming, arguendo, that the Commissioner's present position represents a departure from prior administrative practice, he may, nevertheless, change an earlier interpretation of the law, even if such a change is made retroactive in effect, and even though a taxpayer may have relied to his detriment upon the Commissioner's prior position. Pp. 465 U. S. 342-343.690 F.2d 812, affirmed.BURGER, C.J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, BLACKMUN, STEVENS, and O'CONNOR, JJ., joined. POWELL, J., filed a dissenting opinion, in which REHNQUIST, J., joined, post, p. 465 U. S. 345.

1992_91-2045

IPetitioner R. Gordon Darby2 is a self-employed South Carolina real estate developer who specializes in the development and management of multifamily rental projects. In the early 1980's, he began working with Lonnie Garvin, Jr., a mortgage banker, who had developed a plan to enable multifamily developers to obtain single-family mortgage insurance from respondent Department of Housing and Urban Development (HUD). Respondent Secretary of HUD (Secretary) is authorized to provide single-family mortgage insurance under §203(b) of the National Housing Act, 48 Stat. 1249, as amended, 12 U. S. C. § 1709(b).3 Although HUD also provides mortgage insurance for multifamily projects under § 207 of the National Housing Act, 12 U. S. C. § 1713, the greater degree of oversight and control over such projects makes it less attractive for investors than the singlefamily mortgage insurance option.The principal advantage of Garvin's plan was that it promised to avoid HUD's "Rule of Seven." This rule prevented rental properties from receiving single-family mortgage insurance if the mortgagor already had financial interests in seven or more similar rental properties in the same projectral. The version of § 10(c) as currently enacted, however, uses the singular "reconsideration." See this note, supra, at 138. We quote the text as enacted in the Statutes at Large. See Stephan v. United States, 319 U. S. 423, 426 (1943) ("[T]he Code cannot prevail over the Statutes at Large when the two are inconsistent").2 Petitioners include R. Gordon Darby and his affiliate companies: Darby Development Company; Darby Realty Company; Darby Management Company, Inc.; MD Investment; Parkbrook Acres Associates; and Parkbrook Developers.3 Although the primary purpose of the § 203(b) insurance program was to facilitate home ownership by owner-occupants, investors were permitted in the early 1980's to obtain single-family insurance under certain conditions. Private investor-owners are no longer eligible for single-family mortgage insurance. See Department of Housing and Urban Development Reform Act of 1989, § 143(b), 103 Stat. 2036.140or subdivision. See 24 CFR § 203.42(a) (1992).4 Under Garvin's plan, a person seeking financing would use straw purchasers as mortgage insurance applicants. Once the loans were closed, the straw purchasers would transfer title back to the development company. Because no single purchaser at the time of purchase would own more than seven rental properties within the same project, the Rule of Seven appeared not to be violated. HUD employees in South Carolina apparently assured Garvin that his plan was lawful and that he thereby would avoid the limitation of the Rule of Seven.Darby obtained financing for three separate multiunit projects, and, through Garvin's plan, Darby obtained singlefamily mortgage insurance from HUD. Although Darby successfully rented the units, a combination of low rents, falling interest rates, and a generally depressed rental market forced him into default in 1988. HUD became responsible for the payment of over $6.6 million in insurance claims.HUD had become suspicious of Garvin's financing plan as far back as 1983. In 1986, HUD initiated an audit but concluded that neither Darby nor Garvin had done anything wrong or misled HUD personnel. Nevertheless, in June 1989, HUD issued a limited denial of participation (LDP) that prohibited petitioners for one year from participating in any program in South Carolina administered by respondent Assistant Secretary of Housing.5 Two months later, the Assistant Secretary notified petitioners that HUD was also proposing to debar them from further participation in all HUD4 Prior to August 31, 1955, the Rule of Seven apparently had been the Rule of Eleven. See 24 CFR § 203.42 (1982) and 56 Fed. Reg. 27692 (1991).5 An LDP precludes its recipient from participating in any HUD "program," which includes "receipt of any benefit or financial assistance through grants or contractual arrangements; benefits or assistance in the form of loan guarantees or insurance; and awards of procurement contracts, notwithstanding any quid pro quo given and whether [HUD] gives anything in return." 24 CFR §24.710(a)(2) (1992).141procurement contracts and in any nonprocurement transaction with any federal agency. See 24 CFR § 24.200 (1992).Petitioners' appeals of the LDP and of the proposed debarment were consolidated, and an Administrative Law Judge (ALJ) conducted a hearing on the consolidated appeals in December 1989. The judge issued an "Initial Decision and Order" in April 1990, finding that the financing method used by petitioners was "a sham which improperly circumvented the Rule of Seven." App. to Pet. for Cert. 69a. The ALJ concluded, however, that most of the relevant facts had been disclosed to local HUD employees, that petitioners lacked criminal intent, and that Darby himself "genuinely cooperated with HUD to try [to] work out his financial dilemma and avoid foreclosure." Id., at 88a. In light of these mitigating factors, the ALJ concluded that an indefinite debarment would be punitive and that it would serve no legitimate purpose; 6 good cause existed, however, to debar petitioners for a period of 18 months.7 Id., at 90a.Under HUD regulations,"The hearing officer's determination shall be final unless, pursuant to 24 CFR part 26, the Secretary or the Secretary's designee, within 30 days of receipt of a request decides as a matter of discretion to review the finding of the hearing officer. The 30 day period for deciding whether to review a determination may be extended upon written notice of such extension by the Secretary or his designee. Any party may request such a review in writing within 15 days of receipt of the hearing officer's determination." 24 CFR § 24.314(c) (1992).6 According to HUD regulations, "[d]ebarment and suspension are serious actions which shall be used only in the public interest and for the Federal Government's protection and not for purposes of punishment." 24 CFR § 24. 115(b) (1992).7 The ALJ calculated the 18-month debarment period from June 19, 1989, the date on which the LDP was imposed. The debarment would last until December 19, 1990.142N either petitioners nor respondents sought further administrative review of the ALJ's "Initial Decision and Order."On May 31, 1990, petitioners filed suit in the United States District Court for the District of South Carolina. They sought an injunction and a declaration that the administrative sanctions were imposed for purposes of punishment, in violation of HUD's own debarment regulations, and therefore were "not in accordance with law" within the meaning of § 10(e)(B)(1) of the APA, 5 U. S. C. § 706(2)(A).Respondents moved to dismiss the complaint on the ground that petitioners, by forgoing the option to seek review by the Secretary, had failed to exhaust administrative remedies. The District Court denied respondents' motion to dismiss, reasoning that the administrative remedy was inadequate and that resort to that remedy would have been futile. App. to Pet. for Cert. 29a. In a subsequent opinion, the District Court granted petitioners' motion for summary judgment, concluding that the "imposition of debarment in this case encroached too heavily on the punitive side of the line, and for those reasons was an abuse of discretion and not in accordance with the law." Id., at 19a.The Court of Appeals for the Fourth Circuit reversed.Darby v. Kemp, 957 F.2d 145 (1992). It recognized that neither the National Housing Act nor HUD regulations expressly mandate exhaustion of administrative remedies prior to filing suit. The court concluded, however, that the District Court had erred in denying respondents' motion to dismiss, because there was no evidence to suggest that further review would have been futile or that the Secretary would have abused his discretion by indefinitely extending the time limitations for review.The court denied petitioners' petition for rehearing with suggestion for rehearing en bane. See App. to Pet. for Cert. 93a. In order to resolve the tension between this and the APA, as well as to settle a perceived conflict among the143Courts of Appeals,s we granted certiorari. 506 U. S. 952 (1992).IISection 10(c) of the APA bears the caption "Actions reviewable." It provides in its first two sentences that judicial review is available for "final agency action for which there is no other adequate remedy in a court," and that "preliminary, procedural, or intermediate agency action ... is subject to review on the review of the final agency action." The last sentence of § 10(c) reads:"Except as otherwise expressly required by statute, agency action otherwise final is final for the purposes of this section whether or not there has been presented or determined an application for a declaratory order, for any form of reconsideration [see n. 1, supra], or, unless the agency otherwise requires by rule and provides that the action meanwhile is inoperative, for an appeal to superior agency authority." 80 Stat. 392-393, 5 U. S. C. §704.Petitioners argue that this provision means that a litigant seeking judicial review of a final agency action under the APA need not exhaust available administrative remedies unless such exhaustion is expressly required by statute or agency rule. According to petitioners, since § 10(c) contains an explicit exhaustion provision, federal courts are not free to require further exhaustion as a matter of judicial discretion.8 The Fourth Circuit's ruling in this case appears to be consistent with Montgomery v. Rumsfeld, 572 F.2d 250, 253-254 (CA9 1978), and Missouri v. Bowen, 813 F.2d 864 (CA8 1987), but is in considerable tension with United States v. Consolidated Mines & Smelting Co., 455 F.2d 432, 439-440 (CA9 1971); New England Coalition on Nuclear Pollution v. United States Nuclear Regulatory Comm'n, 582 F.2d 87, 99 (CA1 1978); and Gulf Oil Corp. v. United States Dept. of Energy, 214 U. S. App. D. C. 119, 131, and n. 73, 663 F.2d 296, 308, and n. 73 (1981).144Respondents contend that § 10(c) is concerned solely with timing, that is, when agency actions become "final," and that Congress had no intention to interfere with the courts' ability to impose conditions on the timing of their exercise of jurisdiction to review final agency actions. Respondents concede that petitioners' claim is "final" under § 10(c), for neither the National Housing Act nor applicable HUD regulations require that a litigant pursue further administrative appeals prior to seeking judicial review. However, even though nothing in § 10(c) precludes judicial review of petitioners' claim, respondents argue that federal courts remain free under the AP A to impose appropriate exhaustion requirements.9We have recognized that the judicial doctrine of exhaustion of administrative remedies is conceptually distinct from the doctrine of finality:"[T]he finality requirement is concerned with whether the initial decisionmaker has arrived at a definitive position on the issue that inflicts an actual, concrete injury; the exhaustion requirement generally refers to administrative and judicial procedures by which an injured party may seek review of an adverse decision and obtain a remedy if the decision is found to be unlawful or otherwise inappropriate." Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U. S. 172, 193 (1985).Whether courts are free to impose an exhaustion requirement as a matter of judicial discretion depends, at least in part, on whether Congress has provided otherwise, for "[o]f9 Respondents also have argued that under HUD regulations, petitioners' debarment remains "inoperative" pending review by the Secretary. See 48 Fed. Reg. 43304 (1983). But this fact alone is insufficient under § 10(c) to mandate exhaustion prior to judicial review, for the agency also must require such exhaustion by rule. Respondents concede that HUD imposes no such exhaustion requirement. Brief for Respondents 31.145'paramount importance' to any exhaustion inquiry is congressional intent," McCarthy v. Madigan, 503 U. S. 140, 144 (1992), quoting Patsy v. Board of Regents of Florida, 457 U. S. 496, 501 (1982). We therefore must consider whether § 10(c), by providing the conditions under which agency action becomes "final for the purposes of" judicial review, limits the authority of courts to impose additional exhaustion requirements as a prerequisite to judicial review.It perhaps is surprising that it has taken over 45 years since the passage of the AP A for this Court definitively to address this question. Professor Davis noted in 1958 that § 10(c) had been almost completely ignored in judicial opinions, see 3 K. Davis, Administrative Law Treatise § 20.08, p. 101 (1958); he reiterated that observation 25 years later, noting that the "provision is relevant in hundreds of cases and is customarily overlooked." 4 K. Davis, Administrative Law Treatise § 26.12, pp. 468-469 (2d ed. 1983). Only a handful of opinions in the Courts of Appeals have considered the effect of § 10(c) on the general exhaustion doctrine. SeeThis Court has had occasion, however, to consider § 10(c) in other contexts. For example, in ICC v. Locomotive Engineers, 482 U. S. 270 (1987), we recognized that the plain language of § 10(c), which provides that an agency action is final "whether or not there has been presented or determined an application" for any form of reconsideration, could be read to suggest that the agency action is final regardless whether a motion for reconsideration has been filed. We noted, however, that § 10(c) "has long been construed by this and other courts merely to relieve parties from the requirement of petitioning for rehearing before seeking judicial review (unless, of course, specifically required to do so by statute-see, e. g., 15 U. S. C. §§ 717r, 3416(a)), but not to prevent petitions for reconsideration that are actually filed from rendering the orders under reconsideration nonfinal" (emphasis in original). Id., at 284-285.146In Bowen v. Massachusetts, 487 U. S. 879 (1988), we were concerned with whether relief available in the Claims Court was an "adequate remedy in a court" so as to preclude review in Federal District Court of a final agency action under the first sentence of § 10(c). We concluded that "although the primary thrust of [§ 10(c)] was to codify the exhaustion requirement," id., at 903, Congress intended by that provision simply to avoid duplicating previously established special statutory procedures for review of agency actions.While some dicta in these cases might be claimed to lend support to respondents' interpretation of § 10(c), the text of the APA leaves little doubt that petitioners are correct. Under § 10(a) of the APA, "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof" 5 U. S. C. § 702 (emphasis added). Although § 10(a) provides the general right to judicial review of agency actions under the APA, § 10(c) establishes when such review is available. When an aggrieved party has exhausted all administrative remedies expressly prescribed by statute or agency rule, the agency action is "final for the purposes of this section" and therefore "subject to judicial review" under the first sentence. While federal courts may be free to apply, where appropriate, other prudential doctrines of judicial administration to limit the scope and timing of judicial review, § 10(c), by its very terms, has limited the availability of the doctrine of exhaustion of administrative remedies to that which the statute or rule clearly mandates.The last sentence of § 10(c) refers explicitly to "any form of reconsideration" and "an appeal to superior agency authority." Congress clearly was concerned with making the exhaustion requirement unambiguous so that aggrieved parties would know precisely what administrative steps were required before judicial review would be available. If courts were able to impose additional exhaustion requirements be-147yond those provided by Congress or the agency, the last sentence of § 10(c) would make no sense. To adopt respondents' reading would transform § 10(c) from a provision designed to "'remove obstacles to judicial review of agency action,'" Bowen v. Massachusetts, 487 U. S., at 904, quoting Shaughnessy v. Pedreiro, 349 U. S. 48, 51 (1955), into a trap for unwary litigants. Section 10(c) explicitly requires exhaustion of all intra-agency appeals mandated either by statute or by agency rule; it would be inconsistent with the plain language of § 10(c) for courts to require litigants to exhaust optional appeals as well.IIIRecourse to the legislative history of § 10(c) is unnecessary in light of the plain meaning of the statutory text. Nevertheless, we consider that history briefly because both sides have spent much of their time arguing about its implications. In its report on the APA, the Senate Judiciary Committee explained that the last sentence of § 10(c) was "designed to implement the provisions of section 8(a)." Section 8(a), now codified, as amended, as 5 U. S. C. § 557(b), provides, unless the agency requires otherwise, that an initial decision made by a hearing officer "becomes the decision of the agency without further proceedings unless there is an appeal to, or review on motion of, the agency within time provided by rule." The Judiciary Committee explained:"[A]n agency may permit an examiner to make the initial decision in a case, which becomes the agency's decision in the absence of an appeal to or review by the agency. If there is such review or appeal, the examiner's initial decision becomes inoperative until the agency determines the matter. For that reason this subsection [§ 10(c)] permits an agency also to require by rule that, if any party is not satisfied with the initial decision of a subordinate hearing officer, the party must first appeal to the agency (the decision meanwhile being inopera-148tive) before resorting to the courts. In no case may appeal to 'superior agency authority' be required by rule unless the administrative decision meanwhile is inoperative, because otherwise the effect of such a requirement would be to subject the party to the agency action and to repetitious administrative process without recourse. There is a fundamental inconsistency in requiring a person to continue 'exhausting' administrative processes after administrative action has become, and while it remains, effective." S. Rep. No. 752, 79th Cong., 1st Sess., 27 (1945); Administrative Procedure Act: Legislative History 1944-1946, S. Doc. No. 248, 79th Cong., 2d Sess., 213 (1946) (hereinafter Leg. Hist.).In a statement appended to a letter dated October 19, 1945, to the Judiciary Committee, Attorney General Tom C. Clark set forth his understanding of the effect of § 10(c):"This subsection states (subject to the provisions of section 10(a)) the acts which are reviewable under section 10. It is intended to state existing law. The last sentence makes it clear that the doctrine of exhaustion of administrative remedies with respect to finality of agency action is intended to be applied only (1) where expressly required by statute ... or (2) where the agency's rules require that decisions by subordinate officers must be appealed to superior agency authority before the decision may be regarded as final for purposes of judicial review." Id., at 44, Leg. Hist. 230.1010 In his manual on the APA, prepared in 1947, to which we have given some deference, see, e. g., Steadman v. SEC, 450 U. S. 91, 103, n. 22 (1981); Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U. S. 519, 546 (1978), Attorney General Clark reiterated the Department of Justice's view that § 10(c) "embodies the doctrine of exhaustion of administrative remedies .... Agency action which is finally operative and decisive is reviewable." Attorney General's Manual on the Administrative Procedure Act 103 (1947). See also R. R. Rep. No. 1980, 79th Cong., 2d Sess., 55, n. 21 (1946); Leg. Rist. 289, n. 21 (describing149Respondents place great weight on the Attorney General's statement that § 10(c) "is intended to state existing law." That law, according to respondents, "plainly permitted federal courts to require exhaustion of adequate administrative remedies." Brief for Respondents 19-20. We cannot agree with this categorical pronouncement. With respect to the exhaustion of motions for administrative reconsideration or rehearing, the trend in pre- AP A cases was in the opposite direction. In Vandalia R. Co. v. Public Servo Comm'n of Ind., 242 U. S. 255 (1916), for example, this Court invoked the "general rule" that "one aggrieved by the rulings of such an administrative tribunal may not complain that the Constitution of the United States has been violated if he has not availed himself of the remedies prescribed by the state law for a rectification of such rulings." Id., at 261. The state law provided only that the Railroad Commission had the authority to grant a rehearing; it did not require that a rehearing be sought. Nevertheless, "since the record shows that plaintiff in error and its associates were accorded a rehearing upon the very question of modification, but abandoned it, nothing more need be said upon that point." Ibid.Seven years later, in Prendergast v. New York Telephone Co., 262 U. S. 43, 48 (1923), without even mentioning the Vandalia case, the Court stated:"It was not necessary that the Company should apply to the Commission for a rehearing before resorting to the court. While under the Public Service Commission Law any person interested in an order of the Commission has the right to apply for a rehearing, the Commission is not required to grant such rehearing unless in its judgment sufficient reasons therefor appear .... As the law does not require an application for a rehearingagency's authority to adopt rules requiring a party to take a timely appeal to the agency prior to seeking judicial review as "an application of the time-honored doctrine of exhaustion of administrative remedies").150to be made and its granting is entirely within the discretion of the Commission, we see no reason for requiring it to be made as a condition precedent to the bringing of a suit to enjoin the enforcement of the order."Accord, Banton v. Belt Line R. Corp., 268 U. S. 413, 416-417 (1925) ("No application to the commission for relief was required by the state law. None was necessary as a condition precedent to the suit").Shortly before Congress adopted the AP A, the Court, in Levers v. Anderson, 326 U. S. 219 (1945), held that where a federal statute provides that a district supervisor of the Alcohol Tax Unit of the Bureau of Internal Revenue "may hear the application" for a rehearing of an order denying certain liquor permits, such an application was not a prerequisite to judicial review. Nothing "persuades us that the 'may' means must, or that the Supervisors were required to hear oral argument." Id., at 223 (emphasis added). Despite the fact that the regulations permitted a stay pending the motion for reconsideration, the Court concluded that "the motion is in its effect so much like the normal, formal type of motion for rehearing that we cannot read into the Act an intention to make it a prerequisite to the judicial review specifically provided by Congress." Id., at 224.Respondents in effect concede that the trend in the law prior to the enactment of the AP A was to require exhaustion of motions for administrative reconsideration or rehearing only when explicitly mandated by statute. Respondents argue, however, that the law governing the exhaustion of administrative appeals prior to the AP A was significantly different from § 10(c) as petitioners would have us interpret it. Brief for Respondents 23. Respondents rely on United States v. Sing Tuck, 194 U. S. 161 (1904), in which the Court considered whether, under the relevant statute, an aggrieved party had to appeal an adverse decision by the Inspector of Immigration to the Secretary of Commerce and Labor before151judicial review would be availableY It recognized that the relevant statute "points out a mode of procedure which must be followed before there can be a resort to the courts," id., at 167, and that a party must go through "the preliminary sifting process provided by the statutes," id., at 170. Accord, Chicago, M., St. P. & P. R. Co. v. Risty, 276 U. S. 567, 574-575 (1928).12Nothing in this pre-APA history, however, supports respondents' argument that initial decisions that were "final" for purposes of judicial review were nonetheless unreviewable unless and until an administrative appeal was taken. The pre- AP A cases concerning judicial review of federal agency action stand for the simple proposition that, until an administrative appeal was taken, the agency action was unreviewable because it was not yet "final." This is hardly surprising, given the fact that few, if any, administrative agencies authorized hearing officers to make final agency decisions prior to the enactment of the AP A. See Federal Administrative Law Developments-1971, 1972 Duke L. J. 115, 295, n. 22 ("[P]rior to the passage of the APA, the existing agencies ordinarily lacked the authority to make binding de-11 The Act of August 18, 1894, 28 Stat. 390, provided: "In every case where an alien is excluded from admission into the United States under any law or treaty now existing or hereafter made, the decision of the appropriate immigration or customs officers, if adverse to the admission of such alien, shall be final, unless reversed on appeal to the Secretary of [Commerce and Labor]."12 In an address to the American Bar Association in 1940, Dean Stason of the University of Michigan Law School summarized the law on exhaustion of administrative appeals: "In the event that a statute setting up an administrative tribunal also creates one or more appellate administrative tribunals, it is almost invariably held that a party who is aggrieved by action of the initial agency must first seek relief by recourse to the appellate agency or agencies." Stason, Timing of Judicial Redress from Erroneous Administrative Action, 25 Minn. L. Rev. 560, 570 (1941). See also 4 K. Davis, Administrative Law Treatise §26.12, p. 469 (2d ed. 1983) ("The pre-1946 law was established that an appeal to higher administrative authorities was a prerequisite to judicial review").152terminations at a level below that of the agency board or commission, so that section 10(c) would be expected to affect the exhaustion doctrine in only a very limited number of instances").The purpose of § 10(c) was to permit agencies to require an appeal to "superior agency authority" before an examiner's initial decision became final. This was necessary because, under § Sea), initial decisions could become final agency decisions in the absence of an agency appeal. See 5 U. S. C. § 557(b). Agencies may avoid the finality of an initial decision, first, by adopting a rule that an agency appeal be taken before judicial review is available, and, second, by providing that the initial decision would be "inoperative" pending appeal. Otherwise, the initial decision becomes final and the aggrieved party is entitled to judicial review.Respondents also purport to find support for their view in the text and legislative history of the 1976 amendments of the APA. After eliminating the defense of sovereign immunity in APA cases, Congress provided: "Nothing herein ... affects other limitations on judicial review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground," Pub. L. 94-574, § 1, 90 Stat. 2721 (codified as 5 U. S. C. § 702). According to respondents, Congress intended by this proviso to ensure that the judicial doctrine of exhaustion of administrative remedies would continue to apply under the AP A to permit federal courts to refuse to review agency actions that were nonetheless final under § 10(c). See S. Rep. No. 94-996, p. 11 (1976) (among the limitations on judicial review that remained unaffected by the 1976 amendments was the "failure to exhaust administrative remedies").1313 Respondents also rely on then-Assistant Attorney General Scalia's letter to the Chairman of the Senate Subcommittee on Administrative Practice and Procedure where he wrote that the Department of Justice supported the amendment in large part because it expected that many (or most) of the cases disposed of on the basis of sovereign immunity could153Putting to one side the obvious problems with relying on postenactment legislative history, see, e. g., United States v. Texas, 507 U. S. 529, 535, n. 4 (1993); Pension Benefit Guaranty Corporation v. LTV Corp., 496 U. S. 633, 650 (1990), the proviso was added in 1976 simply to make clear that "[a]ll other than the law of sovereign immunity remain unchanged," S. Rep. No. 94-996, at 11. The elimination of the defense of sovereign immunity did not affect any other limitation on judicial review that would otherwise apply under the AP A. As already discussed, the exhaustion doctrine continues to exist under the AP A to the extent that it is required by statute or by agency rule as a prerequisite to judicial review. Therefore, there is nothing inconsistent between the 1976 amendments to the AP A and our reading of § 10(c).IVWe noted just last Term in a non-APA case that "appropriate deference to Congress' power to prescribe the basic procedural scheme under which a claim may be heard in a federal court requires fashioning of exhaustion principles in a manner consistent with congressional intent and any applicable statutory scheme." McCarthy v. Madigan, 503 U. S., at 144.Appropriate deference in this case requires the recognition that, with respect to actions brought under the AP A, Congress effectively codified the doctrine of exhaustion of administrative remedies in § 10(c). Of course, the exhaustionhave been decided the same way on other legal grounds such as the failure to exhaust administrative remedies. S. Rep. No. 94-996, pp. 25-26 (1976). See also 1 Recommendations and Reports of the Administrative Conference of the United States 222 (1968-1970) (urging Congress to adopt the very language that was eventually incorporated verbatim into the 1976 amendment so that "the abolition of sovereign immunity will not result in undue judicial interference with governmental operations or a flood of burdensome litigation").154doctrine continues to apply as a matter of judicial discretion in cases not governed by the AP A. But where the AP A applies, an appeal to "superior agency authority" is a prerequisite to judicial review only when expressly required by statute or when an agency rule requires appeal before review and the administrative action is made inoperative pending that review. Courts are not free to impose an exhaustion requirement as a rule of judicial administration where the agency action has already become "final" under § lO(c).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, 1992SyllabusDARBY ET AL. v. CISNEROS, SECRETARY OF HOUSING AND URBAN DEVELOPMENT, ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUITNo. 91-2045. Argued March 22, 1993-Decided June 21, 1993In a consolidated appeal from decisions by the Department of Housing and Urban Development (HUD) to initiate administrative sanctions against petitioners, an Administrative Law Judge (ALJ) concluded that petitioners should be debarred from participating in federal programs for 18 months. Under HUD regulations, an ALJ's determination "shall be final unless ... the Secretary ... within 30 days of receipt of a request decides as a matter of discretion to review the [ALJ's] finding .... " 24 CFR §24.314(c). Neither party sought further administrative review, but petitioners filed suit in the District Court, seeking an injunction and declaration that the sanctions were not in accordance with law within the meaning of the Administrative Procedure Act (APA). Respondents moved to dismiss the complaint on the ground that petitioners, by forgoing the option to seek review by the Secretary, had failed to exhaust their administrative remedies. The court denied the motion and granted summary judgment to petitioners on the merits of the case. The Court of Appeals reversed, holding that the District Court had erred in denying the motion to dismiss.Held: Federal courts do not have the authority to require a plaintiff to exhaust available administrative remedies before seeking judicial review under the APA, where neither the relevant statute nor agency rules specifically mandate exhaustion as a prerequisite to judicial review. The language of § 10(c) of the APA is explicit that an appeal to "superior agency authority" is a prerequisite to judicial review only when "expressly required by statute" or when the agency requires an appeal "by rule and provides that the [administrative] action is ... inoperative" pending that review. Since neither the National Housing Act nor applicable HUD regulations mandate further administrative appeals, the ALJ's decision was a "final" agency action subject to judicial review under § 10(c). The lower courts were not free to require further exhaustion of administrative remedies, although the exhaustion doctrine continues to apply as a matter of judicial discretion in cases not gov-138erned by the APA. Nothing in § 10(c)'s legislative history supports a contrary reading. Pp. 143-154.957 F.2d 145, reversed and remanded.BLACKMUN, 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 WHITE, STEVENS, O'CONNOR, KENNEDY, and SOUTER, JJ., joined.Steven D. Gordon argued the cause for petitioners. With him on the briefs was Michael H. Ditton.James A. Feldman argued the cause for respondents.With him on the brief were Acting Solicitor General Bryson, Assistant Attorney General Gerson, Deputy Solicitor General Mahoney, and Anthony J. Steinmeyer.JUSTICE BLACKMUN delivered the opinion of the Court.* This case presents the question whether federal courts have the authority to require that a plaintiff exhaust available administrative remedies before seeking judicial review under the Administrative Procedure Act (APA), 5 U. s. C. § 701 et seq., where neither the statute nor agency rules specifically mandate exhaustion as a prerequisite to judicial review. At issue is the relationship between the judicially created doctrine of exhaustion of administrative remedies and the statutory requirements of § 10(c) of the APA.l*THE CHIEF JUSTICE, JUSTICE SCALIA, and JUSTICE THOMAS join all but Part III of this opinion.1 Section W(c), 80 Stat. 392-393, 5 U. S. C. § 704, provides:"Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review. A preliminary, procedural, or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action. Except as otherwise expressly required by statute, agency action otherwise final is final for the purposes of this section whether or not there has been presented or determined an application for a declaratory order, for any form of reconsideration, or, unless the agency otherwise requires by rule and provides that the action meanwhile is inoperative, for an appeal to superior agency authority."We note that the statute as codified in the United States Code refers to "any form of reconsiderations," with the last word being in the plu-139Full Text of Opinion

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MR. JUSTICE BLACK delivered the opinion of the Court.The petitioner Paul Seymour was charged with burglary by the State of Washington in the Superior Court of Okanagan County and pleaded guilty to the lesser included offense of attempted burglary. Upon this plea, he was convicted and sentenced to serve seven and one-half years in the state penitentiary. Later, he commenced this proceeding by filing a petition for writ of habeas corpus in the State Supreme Court urging that his state conviction was void for want of jurisdiction on the grounds that he was an enrolled, unemancipated member of the Colville Indian Tribe, and therefore a ward of the United States; that the "purported crime" of burglary for which he had been convicted was committed in "Indian country" as defined in 18 U.S.C. § 1151; [Footnote 1] and that burglary committed by an Indian in Indian country is an offense "within the exclusive jurisdiction of the United States" under 18 U.S.C. § 1153. [Footnote 2] Since the petition, return, and answer raised issues of fact, the State Supreme Court referred the matter to the original trial court to determine (1) whether petitioner was a member of the Colville Tribe, and (2) whether the offense was Page 368 U. S. 353 committed in Indian country. After hearings, the trial court upheld petitioner's claim of membership in the Colville Tribe, but rejected his contention that the burglary upon which the state conviction was based had occurred in Indian country.The trial court's conclusion that the crime did not take place in Indian country was not based upon any factual doubt as to the precise place where the burglary occurred, for that fact was undisputed. Nor did that conclusion rest upon any uncertainty as to the proper definition of the term "Indian country," for the court expressly recognized the applicability of § 1151, which defines the term to include"all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation. . . ."Rather, the trial court's conclusion rested solely upon its holding that, although the land upon which the burglary occurred had once been within the limits of an Indian reservation, that reservation had since been dissolved, and the land in question restored to the public domain.Agreeing with the trial court, the State Supreme Court then denied the petition for habeas corpus, [Footnote 3] holding, as it previously had in State ex rel. Best v. Superior Court, [Footnote 4] that "[w]hat is still known as the south half of the diminished Colville Indian reservation is no longer an Indian reservation." Since the question of whether the place where the crime occurred is a part of an Indian reservation, and therefore Indian country within the meaning of §§ 1151 and 1153, depends upon the interpretation and application of federal law, and since the resolution of that question as presented in this case raises issues of importance pertaining Page 368 U. S. 354 to this country's relationship to its Indian wards, we granted certiorari. [Footnote 5]The case turns upon the current status of the Colville Indian Reservation -- a reservation created in 1872 by Executive Order of President Grant which declared that"the country bounded on the east and south by the Columbia River, on the west by the Okanagan River, and on the north by the British possessions, be, and the same is hereby, set apart as a reservation for"the Colville Indians. [Footnote 6] In 1892, the size of this reservation was diminished when Congress passed an Act providing that, subject to reservations and allotments made to individual Colville Indians, about one-half of the original Colville reservation, since commonly referred to as the "North Half," should be "vacated and restored to the public domain. . . ." [Footnote 7] This Act did not, however, purport to affect the status of the remaining part of the reservation, since known as the "South Half" or the "diminished Colville Indian Reservation," but instead expressly reaffirmed that this South Half was "still reserved by the Government for their [the Colville Indians'] use and occupancy." [Footnote 8] Since the burglary of which petitioner was convicted occurred on land within the South Half, it is clear that state jurisdiction over the offense charged, if it is to be found at all, must be based upon some federal action subsequent to the 1892 Act.The Washington courts found authority for the assertion of state jurisdiction in a 1906 Act of Congress [Footnote 9] implemented by a 1916 Presidential Proclamation. [Footnote 10] The 1906 Act provided for the sale of mineral lands and Page 368 U. S. 355 for the settlement and entry under the homestead laws of other surplus lands remaining on the diminished Colville Reservation after allotments were first made and patents issued for 80 acres of land to "each man, woman, and child" either "belonging to or having tribal relations on said Colville Indian Reservation. . . ." The 1916 Presidential Proclamation issued pursuant to this Act simply prescribed the method for disposal of surplus lands under the homestead laws as the 1906 Act had authorized. The Washington courts viewed this 1906 Act and the 1916 Presidential Proclamation as completely wiping out the South Half of the Colville Reservation in precisely the same manner as the 1892 Act had "vacated and restored" the North Half of the reservation "to the public domain." Upon careful consideration, however, we cannot agree with that conclusion, for it has no support in the language of the 1906 Act and ignores important differences between that Act and the provisions of the 1892 Act restoring the North Half of the reservation to the public domain.Nowhere in the 1906 Act is there to be found any language similar to that in the 1892 Act expressly vacating the South Half of the reservation and restoring that land to the public domain. Quite the contrary, the 1906 Act repeatedly refers to the Colville Reservation in a manner that makes it clear that the intention of Congress was that the reservation should continue to exist as such. [Footnote 11] Moreover, the 1906 Act, unlike the 1892 Act, provides that the proceeds from the disposition of lands affected by its provisions shall be"deposited in the Treasury of the United States to the credit of the Colville and confederated tribes of Indians belonging and having tribal rights on the Colville Indian Reservation, in the State of Washington. . . ."The 1892 Act had provided for congressional power to appropriate the net proceeds Page 368 U. S. 356 from the sale and disposition of lands in the North Half of the original reservation for the general public use. Consequently, it seems clear that the purpose of the 1906 Act was neither to destroy the existence of the diminished Colville Indian Reservation nor to lessen federal responsibility for and jurisdiction over the Indians having tribal rights on that reservation. The Act did no more than open the way for non-Indian settlers to own land on the reservation in a manner which the Federal Government, acting as guardian and trustee for the Indians, regarded as beneficial to the development of its wards.That this is the proper construction of the 1906 Act finds support in subsequent congressional treatment of the reservation. Time and time again in statutes enacted since 1906, Congress has explicitly recognized the continued existence as a federal Indian reservation of this South Half or diminished Colville Indian Reservation. [Footnote 12] As recently as 1956, Congress enacted a statute which provides that"the undisposed-of lands of the Colville Indian Reservation, Washington, dealt with by the Act of March 22, 1906 (34 Stat. 80), are hereby restored to tribal ownership to be held in trust by the United States to the same extent as all other tribal lands on the existing reservation, subject to any existing valid rights. [Footnote 13] "Page 368 U. S. 357(Emphasis supplied.) This same construction of the 1906 Act has been adopted by the Department of Interior, the agency of government having primary responsibility for Indian affairs. [Footnote 14] And the Solicitor General has urged this construction upon the Court in this very case. We therefore conclude that the Washington courts erred in holding that the 1906 Act dissolved the Colville Indian Reservation, because it seems clear that this reservation is still in existence.Counsel for the State of Washington present two alternative contentions which, if sound, would sustain the jurisdiction of the State over the land here in question even if the Act of 1906 did not completely dissolve the reservation in the manner held by the Washington courts. The first of these rests upon the assertion that the particular parcel of land upon which this burglary was committed is held under a patent in fee by a non-Indian. The contention is that, even though the reservation was not dissolved completely by the Act permitting non-Indian settlers to come upon it, its limits would be diminished by the actual purchase of land within it by non-Indians because land owned in fee by non-Indians cannot be said to be reserved for Indians. This contention is not entirely implausible on its face, and, indeed, at one time, had the support of distinguished commentators on Indian Law. [Footnote 15] But the issue has since been squarely put to rest by congressional enactment of the currently prevailing definition of Indian country in § 1151 to include"all land within the limits of any Indian reservation under the jurisdiction Page 368 U. S. 358 of the United States government, notwithstanding the issuance of any patent. . . ."The State urges that we interpret the words "notwithstanding the issuance of any patent" to mean only notwithstanding the issuance of any patent to an Indian. But the State does not suggest, nor can we find, any adequate justification for such an interpretation. Quite the contrary, it seems to us that the strongest argument against the exclusion of patented lands from an Indian reservation applies with equal force to patents issued to non-Indians and Indians alike. For that argument rests upon the fact that, where the existence or nonexistence of an Indian reservation, and therefore the existence or nonexistence of federal jurisdiction, depends upon the ownership of particular parcels of land, law enforcement officers operating in the area will find it necessary to search tract books in order to determine whether criminal jurisdiction over each particular offense, even though committed within the reservation, is in the State or Federal Government. [Footnote 16] Such an impractical pattern of checkerboard jurisdiction was avoided by the plain language of § 1151, and we see no justification for adopting an unwarranted construction of that language where the result would be merely to recreate confusion Congress specifically sought to avoid.The second alternative contention pressed by the State of Washington rests upon the fact that the land on which the burglary occurred is located within the governmental townsite of Omak, a town laid out by the Federal Government pursuant to authority granted in § 11 of the 1906 Act. The State contends that, when this authorized townsite plot was filed for record in Okanagan County, Page 368 U. S. 359 all the lands encompassed within the townsite were thereby dedicated to the public interest and, since this dedication to the public is inconsistent with any reservation for the Indians, all these lands became subject to the exercise of criminal jurisdiction by the courts of Washington. This contention is nothing more than a variation of the State's first alternative contention, for it simply attempts to make a special case for excluding from a reservation lands owned by towns as opposed to lands owned by individual non-Indians. The arguments which led us to reject the State's first alternative contention, though present only with somewhat less force here, are nonetheless entirely adequate to require the same answer to this contention. Moreover, the State can point to no language in § 1151's definition of Indian country which lends the slightest support to the idea that by creating a townsite within an Indian reservation the Federal Government lessens the scope of its responsibility for the Indians living on that reservation.In United States v. Celestine, [Footnote 17] this Court said that,"when Congress has once established a reservation, all tracts included within it remain a part of the reservation until separated therefrom by Congress."We are unable to find where Congress has taken away from the Colville Indians any part of the land within the boundaries of the area which has been recognized as their reservation since 1892. Since the burglary with which petitioner was charged occurred on property plainly located within the limits of that reservation, the courts of Washington had no jurisdiction to try him for that offense.The judgment of the Washington Supreme Court denying petitioner's plea for a writ of habeas corpus is therefore reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.Reversed

U.S. Supreme CourtSeymour v. Superintendent, 368 U.S. 351 (1962)Seymour v. Superintendent of Washington State PenitentiaryNo. 62Argued December 13, 1961Decided January 15, 1962368 U.S. 351SyllabusPetitioner is imprisoned in the Washington State Penitentiary under a sentence for attempted burglary imposed by a state court. He petitioned the State Supreme Court for habeas corpus, alleging that he is an Indian, that the alleged offense was committed in "Indian country," and that, therefore, exclusive jurisdiction was in the United States under 18 U.S.C. § 1153. The Court found that petitioner was a member of the Colville Tribe, but it denied habeas corpus on the ground that the place where the offense was committed was no longer an Indian reservation, though it had been a part of the Colville Indian Reservation.Held: the Colville Indian Reservation is still in existence; the land upon which the offense is alleged to have occurred is within the limits of that Reservation; the state courts had no jurisdiction to try petitioner for that offense, and the judgment denying habeas corpus is reversed. Pp. 368 U. S. 352-359.(a) The Act of March 22, 1906, providing for the disposition of surplus lands remaining in the South Half of the diminished Colville Indian Reservation did not dissolve that Reservation, and it is still in existence. Pp. 368 U. S. 354-357.(b) Even if the land upon which the alleged offense was committed was held by a non-Indian under a patent in fee, a different conclusion would not be required, since 18 U.S.C. § 1151 defines "Indian country" as including "all land within the limits of any Indian reservation . . . , notwithstanding the issuance of any patent." Pp. 368 U. S. 357-358.(c) A different conclusion is not required by the fact that the land on which the offense occurred is located within a governmental townsite laid out by the Federal Government under § 11 of the 1906 Act. Pp. 368 U. S. 358-359.55 Wash. 2d 109, 346 P.2d 669, reversed. Page 368 U. S. 352

1988_87-1816

JUSTICE STEVENS delivered the opinion of the Court.This case presents the question whether Rule 609(a)(1) of the Federal Rules of Evidence requires a judge to let a civil litigant impeach an adversary's credibility with evidence of the adversary's prior felony convictions. Because the Courts of Appeals have answered that question in different ways, we granted certiorari to resolve the conflict. 487 U.S. 1203 (1988). Page 490 U. S. 506While in custody at a county prison, petitioner Paul Green obtained work-release employment at a car wash. On his sixth day at work, Green reached inside a large dryer to try to stop it. A heavy rotating drum caught and tore off his right arm. Green brought this product liability action against respondent Bock Laundry Co. (Bock), manufacturer of the machine. At trial, Green testified that he had been instructed inadequately concerning the machine's operation and dangerous character. Bock impeached Green's testimony by eliciting admissions that he had been convicted of conspiracy to commit burglary and burglary, both felonies. The jury returned a verdict for Bock. On appeal, Green argued that the District Court had erred by denying his pretrial motion to exclude the impeaching evidence. The Court of Appeals summarily affirmed the District Court's ruling. Pet. for Cert. 9a-10a.The Court of Appeals' disposition followed Circuit precedent established in Diggs v. Lyons, 741 F.2d 577 (CA3 1984), cert. denied, 471 U. S. 1078 (1985). Writing for the panel majority, Judge Maris, who had headed the Advisory Committee that proposed a federal code of evidence to this Court, [Footnote 1] concluded in Diggs that Rule 609 mandated admission for impeachment purposes of a civil plaintiff's prior felony convictions. He relied on the legislative history of Rule 609 as establishing that Congress intended Rule 609 to govern both criminal and civil proceedings. 741 F.2d at 581. He also concluded that a judge may not balance prejudice and probativeness pursuant to Rule 403 [Footnote 2] in order to circumvent Rule Page 490 U. S. 507 609(a)(2)'s requirement that all convictions pertaining to dishonesty -- often called crimen falsi evidence -- be admitted. Ibid. Rule 609's specific command, he wrote, forecloses judicial exercise of Rule 403 discretion to exclude evidence of felony convictions. Id. at 582. The only situation in which Rule 609(a) allows the trial judge discretion to bar impeachment by prior felony convictions is when admission would unduly prejudice the defendant in a criminal case. [Footnote 3] Ibid. Judge Maris concluded with this comment:"[T]he scope of Rule 609 has been and is the subject of widespread controversy and strongly held divergent views. We have felt compelled to give the rule the effect which the plain meaning of its language and the legislative history require. We recognize that the mandatory admission of all felony convictions on the issue of credibility may in some cases produce unjust and even bizarre results. Evidence that a witness has in the past been convicted of manslaughter by automobile, for example, can have but little relevance to his credibility as a witness in a totally different matter. But if the rule is to be amended to eliminate these possibilities of injustice, it must be done by those who have the authority to amend the rules, the Supreme Court and the Congress. . . . It is not for us as enforcers of the rule to amend it under the guise of construing it."Ibid.Dissenting, Judge Gibbons acknowledged that "snippets of legislative history" show that four Members of Congress anticipated that a court might interpret Rule 609(a) to require impeachment of a witness by prior felony convictions irrelevant to the civil context. Id. at 583. Yet he remained unpersuaded that Congress as a whole intended "so ridiculous a result." Ibid. Instead, he attributed the Rules' silence Page 490 U. S. 508 regarding impeachment of civil plaintiffs to "legislative oversight." Ibid. And he noted that other Circuits had concluded, contrary to the panel majority,"that the mandatory admission feature of prior crimen falsi convictions does not apply to the admissibility of prior felony convictions in civil cases."Ibid. Placing the use of prior felony conviction evidence outside the reach of the judge's discretion, he declared, "makes no sense whatever." Ibid.Both the majority and dissenting opinions in Diggs convey dissatisfaction with automatic admissibility of prior felony convictions to impeach civil witnesses, especially civil plaintiffs. Indeed, criticism of this result is longstanding and widespread. [Footnote 4] Our task in deciding this case, however, is not to fashion the rule we deem desirable, but to identify the rule that Congress fashioned. We begin by considering the extent to which the text of Rule 609 answers the question before us. Concluding that the text is ambiguous with respect Page 490 U. S. 509 to civil cases, we then seek guidance from legislative history and from the Rules' overall structure.IFederal Rule of Evidence 609(a) provides:"General Rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment."By its terms, the rule requires a judge to allow impeachment of any witness with prior convictions for felonies not involving dishonesty "only if" the probativeness of the evidence is greater than its prejudice "to the defendant." [Footnote 5] Ibid. It follows that impeaching evidence detrimental to the prosecution in a criminal case "shall be admitted" without any such balancing. Ibid.The Rule's plain language commands weighing of prejudice to a defendant in a civil trial as well as in a criminal trial. But that literal reading would compel an odd result in a case like this. Assuming that all impeaching evidence has at least minimal probative value, and given that the evidence of plaintiff Green's convictions had some prejudicial effect on his case -- but surely none on defendant Bock's -- balancing according to the strict language of Rule 609(a)(1) inevitably Page 490 U. S. 510 leads to the conclusion that the evidence was admissible. In fact, under this construction of the Rule, impeachment detrimental to a civil plaintiff always would have to be admitted.No matter how plain the text of the Rule may be, we cannot accept an interpretation that would deny a civil plaintiff the same right to impeach an adversary's testimony that it grants to a civil defendant. [Footnote 6] The Sixth Amendment to the Constitution guarantees a criminal defendant certain fair trial rights not enjoyed by the prosecution, while the Fifth Amendment lets the accused choose not to testify at trial. In contrast, civil litigants in federal court share equally the protections of the Fifth Amendment's Due Process Clause. Given liberal federal discovery rules, the inapplicability of the Fifth Amendment's protection against self-incrimination, and the need to prove their case, civil litigants almost always must testify in depositions or at trial. Denomination as a civil defendant or plaintiff, moreover, is often happenstance based on which party filed first or on the nature of the suit. [Footnote 7] Evidence that a litigant or his witness is a convicted felon tends to shift a jury's focus from the worthiness of the litigant's position to the moral worth of the litigant himself. [Footnote 8] It is unfathomable why a civil plaintiff -- but not a civil defendant Page 490 U. S. 511 -- should be subjected to this risk. Thus, we agree with the Seventh Circuit that, as far as civil trials are concerned, Rule 609(a)(1) "can't mean what it says." [Footnote 9] Campbell v. Greer, 831 F.2d 700, 703 (1987).Out of this agreement flow divergent courses, each turning on the meaning of "defendant." The word might be interpreted to encompass all witnesses, civil and criminal, parties or not. See Green v. Shearson Lehman/American Express, Inc., 625 F. Supp. 382, 383 (ED Pa.1985) (dictum). It might be read to connote any party offering a witness, in which event Rule 609(a)(1)'s balance would apply to civil, as well as criminal, cases. E.g., Howard v. Gonzales, 658 F.2d 352 (CA5 1981). Finally, "defendant" may refer only to the defendant in a criminal case. See, e.g., Campbell, 831 F.2d at 703. These choices spawn a corollary question: must a judge allow prior felony impeachment of all civil witnesses as well as all criminal prosecution witnesses, or is Rule 609(a)(1) inapplicable to civil cases, in which event Rule 403 would authorize a judge to balance in such cases? Because the plain text does not resolve these issues, we must examine the history leading to enactment of Rule 609 as law.IIAt common law, a person who had been convicted of a felony was not competent to testify as a witness."[T]he disqualification arose as part of the punishment for the crime, only later being rationalized on the basis that such a person was unworthy of belief."3 J. Weinstein & M. Berger, Weinstein's Evidence � 609[02], p. 609-58 (1988) (citing 2 J. Wigmore, Evidence § 519 (3d ed.1940)). As the law evolved, this absolute bar gradually was replaced by a rule that allowed Page 490 U. S. 512 such witnesses to testify in both civil and criminal cases, but also to be impeached by evidence of a prior felony conviction or a crimen falsi misdemeanor conviction. [Footnote 10] In the face of scholarly criticism of automatic admission of such impeaching evidence, some courts moved toward a more flexible approach. [Footnote 11] Page 490 U. S. 513In 1942, the American Law Institute proposed a rule that would have given the trial judge discretion in all cases [Footnote 12] to exclude evidence of prior convictions of any witness if "its probative value is outweighed by the risk that its admission will . . . create substantial danger of undue prejudice. . . ." [Footnote 13] Model Code of Evidence, Rule 303 (1942); see Rule 106. No such evidence could be admitted against a witness-accused unless he first introduced "evidence for the sole purpose of supporting his credibility." Rule 106(3).A decade later, the American Bar Association endorsed a rule that further limited impairment of any witness' credibility to convictions for crimes "involving dishonesty or false statement." National Conference of Commissioners, Uniform Rules of Evidence, Rule 21 (1953). As with Model Rule 106, this evidence would not be admitted against a witness-accused unless he adduced evidence supporting his credibility. Ibid. This code too afforded the judge discretion to exclude impeaching evidence in both criminal and civil trials if on balance he deemed it too prejudicial. See Rules 2, 45.The only contemporaneous congressional enactment governing impeachment by prior convictions stated:"No person shall be incompetent to testify, in either civil or criminal proceedings, by reason of his having been convicted of crime, but such fact may be given in evidence to affect his credit as a witness, either upon the cross-examination of the witness or evidence aliunde. . . ."D.C.Code Ann. § 14-305 (1961). Page 490 U. S. 514 This provision of the District of Columbia Code traditionally had been interpreted to require the admission of prior conviction evidence. McGowan, 1970 Law & Social Order 1. But in reviewing a defendant's challenge to admission of a grand larceny conviction to impeach his testimony at his trial on housebreaking and larceny charges, the Court of Appeals for the District of Columbia Circuit noted that the Rule said conviction evidence "may," not "shall," be admitted; therefore, a judge was not required to allow such impeachment. Luck v. United States, 121 U.S.App.D.C. 151, 156, 348 F.2d 763, 768 (1965). In effect, the court conditioned admissibility on the kind of judicial balancing expressly provided in the Uniform Rules and Model Code. [Footnote 14] Id. at 156, n. 8, 348 F.2d at 768, n. 8. Far from welcoming this innovation, the Federal Department of Justice in 1969 proposed changing the code to overrule Luck, and, in 1970 ,Congress amended the District of Columbia Code to provide that both prior felony and crimen falsi impeaching evidence "shall be admitted." [Footnote 15] Page 490 U. S. 515Amid controversy over Luck, a distinguished Advisory Committee appointed at the recommendation of the Judicial Conference of the United States submitted, in March, 1969, the first draft of evidence rules to be used in all federal civil and criminal proceedings. [Footnote 16] Rule 6-09, forerunner of Federal Rule of Evidence 609, allowed all crimen falsi and felony convictions evidence without mention of judicial discretion. [Footnote 17] The Committee reasoned that "[d]angers of unfair prejudice, confusion of issues, misleading the jury, waste of time, and surprise" inherent in the admission of evidence of witness misconduct "tend to disappear or diminish" when the evidence is based on a conviction. Preliminary Draft of Proposed Rules of Evidence, Advisory Committee's Note, 46 F.R.D. 161, 297 (1969). Having considered five options -- including the Luck doctrine -- for further reducing risks to a witness-accused, the Committee found none acceptable, and so proposed a rule that"adheres to the traditional practice of allowing the witness-accused to be impeached by evidence of conviction of crime, like other witnesses."Id. at 299.Nonetheless, the Advisory Committee embraced the Luck doctrine in its second draft. Issued in March, 1971, this version of Rule 609(a) authorized the judge to exclude either felony or crimen falsi evidence upon determination that its probative value was "substantially outweighed by the danger Page 490 U. S. 516 of unfair prejudice." [Footnote 18] Revised Draft of Proposed Rules of Evidence, 51 F.R.D. 315, 391 (1971). The Committee specified that its primary concern was prejudice to the witness-accused; the "risk of unfair prejudice to a party in the use of [convictions] to impeach the ordinary witness is so minimal as scarcely to be a subject of comment." Advisory Committee's Note, id. at 392. Yet the text of the proposal was broad enough to allow a judge to protect not only criminal defendants, but also civil litigants and nonparty witnesses, from unfair prejudice. Cf. ibid. (safeguards in Rule 609(b), (c), (d) apply to all witnesses).As had Luck's interpretation of the District of Columbia Code, the Advisory Committee's revision of Rule 609(a) met resistance. The Department of Justice urged that the Committee supplant its proposal with the strict, amended version of the District Code. Moore § 609.01[1.-7], p. VI-111. Senator McClellan objected to the adoption of the Luck doctrine and urged reinstatement of the earlier draft. [Footnote 19]The Advisory Committee backed off. As Senator McClellan had requested, it submitted as its third and final draft the same strict version it had proposed in March, 1969. Rules of Page 490 U. S. 517 Evidence, 56 F.R.D. 183, 269-270 (1973). The Committee's Note explained:"The weight of traditional authority has been to allow use of felonies generally, without regard to the nature of the particular offense, and of crimen falsi without regard to the grade of the offense. This is the view accepted by Congress in the 1970 amendment of § 14-305 of the District of Columbia Code. . . . Whatever may be the merits of [other] views, this rule is drafted to accord with the Congressional policy manifested in the 1970 legislation."Id. at 270. This Court forwarded the Advisory Committee's final draft to Congress on November 20, 1972.The House of Representatives did not accept the Advisory Committee's final proposal. A Subcommittee of the Judiciary Committee recommended an amended version similar to the text of the present Rule 609(a), except that it avoided the current rule's ambiguous reference to prejudice to "the defendant." Rather, in prescribing weighing of admissibility of prior felony convictions, it used the same open-ended reference to "unfair prejudice" found in the Advisory Committee's second draft. [Footnote 20]The House Judiciary Committee departed even further from the Advisory Committee's final recommendation, preparing a draft that did not allow impeachment by evidence of prior conviction unless the crime involved dishonesty or false Page 490 U. S. 518 statement. [Footnote 21] Motivating the change were concerns about the deterrent effect upon an accused who might wish to testify and the danger of unfair prejudice, "even upon a witness who was not the accused," from allowing impeachment by prior felony convictions regardless of their relation to the witness' veracity. H.R.Rep. No. 93-650, p. 11 (1973). Although the Committee Report focused on criminal defendants and did not mention civil litigants, its express concerns encompassed all nonaccused witnesses.Representatives who advocated the automatic admissibility approach of the Advisory Committee's draft and those who favored the intermediate approach proposed by the Subcommittee both opposed the Committee's bill on the House floor. Four Members pointed out that the Rule applied in civil, as well as criminal, cases. [Footnote 22] The House voted to adopt the Rule as proposed by its Judiciary Committee. Page 490 U. S. 519The Senate Judiciary Committee proposed an intermediate path. For criminal defendants, it would have allowed impeachment only by crimen falsi evidence; for other witnesses, it also would have permitted prior felony evidence only if the trial judge found that probative value outweighed "prejudicial effect against the party offering that witness." [Footnote 23] This language thus required the exercise of discretion before prior felony convictions could be admitted in civil litigation. But the full Senate, prodded by Senator McClellan, reverted to the version that the Advisory Committee had submitted. See 120 Cong.Rec. 37076, 37083 (1974).Conflict between the House bill, allowing impeachment only by crimen falsi evidence, and the Senate bill, embodying the Advisory Committee's automatic admissibility approach, was resolved by a Conference Committee. [Footnote 24] The Page 490 U. S. 520 conferees' compromise -- enacted as Federal Rule of Evidence 609(a)(1) -- authorizes impeachment by felony convictions, "but only if" the court determines that probative value outweighs "prejudicial effect to the defendant." The Conference Committee's Report makes it perfectly clear that the balance set forth in this draft, unlike the second Advisory Committee and the Senate Judiciary Committee versions, does not protect all nonparty witnesses:"The danger of prejudice to a witness other than the defendant (such as injury to the witness' reputation in his community) was considered and rejected by the Conference as an element to be weighed in determining admissibility. It was the judgment of the Conference that the danger of prejudice to a nondefendant witness is outweighed by the need for the trier of fact to have as much relevant evidence on the issue of credibility as possible."H.R.Conf.Rep. No. 93-1597, pp. 9-10 (1974). Accord, Linskey v. Hecker, 753 F.2d 199, 201 (CA1 1985). Equally clear is the conferees' intention that the rule shield the accused, but not the prosecution, [Footnote 25] in a criminal case. Impeachment by convictions, the Committee Report stated,"should only be excluded where it presents a danger of improperly influencing the outcome of the trial by persuading the trier of fact to convict the defendant on the basis of his prior criminal record."H.R.Conf.Rep. No. 93-1597, supra at 10.But this emphasis on the criminal context, in the Report's use of terms such as "defendant" and "to convict" and in individual Page 490 U. S. 521 conferees' explanations of the compromise, [Footnote 26] raises some doubt over the Rule's pertinence to civil litigants. The discussions suggest that only two kinds of witnesses risk prejudice -- the defendant who elects to testify in a criminal case and witnesses other than the defendant in the same kind of case. Nowhere is it acknowledged that undue prejudice to a civil litigant also may improperly influence a trial's outcome. Although this omission lends support to Judge Gibbons' opinion that "legislative oversight" caused exclusion of civil parties from Rule 609(a)(1)'s balance, see Diggs, 741 F.2d at 583, a number of considerations persuade us that the Rule was meant to authorize a judge to weigh prejudice against no one other than a criminal defendant.A party contending that legislative action changed settled law has the burden of showing that the legislature intended such a change. Cf. Midlantic National Bank v. New Jersey Department of Environmental Protection, 474 U. S. 494, 474 U. S. 502 (1986). The weight of authority before Rule 609's adoption accorded with the Advisory Committee's final draft, admitting all felonies without exercise of judicial discretion in Page 490 U. S. 522 either civil or criminal cases. Departures from this general rule had occurred overtly by judicial interpretation, as in Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763 (1965), or in evidence codes, such as the Model Code and the Uniform Rules. Rule 609 itself explicitly adds safeguards circumscribing the common law rule. See Advisory Committee's Note, 56 F.R.D. at 270-271. The unsubstantiated assumption that legislative oversight produced Rule 609(a)(1)'s ambiguity respecting civil trials hardly demonstrates that Congress intended silently to overhaul the law of impeachment in the civil context. Cf. NLRB v. Plasterers, 404 U. S. 116, 404 U. S. 129-130 (1971).To the extent various drafts of Rule 609 distinguished civil and criminal cases, moreover, they did so only to mitigate prejudice to criminal defendants. Any prejudice that convictions impeachment might cause witnesses other than the accused was deemed "so minimal as scarcely to be a subject of comment." Advisory Committee's Note, 51 F.R.D. at 392. Far from voicing concern lest such impeachment unjustly diminish a civil witness in the eyes of the jury, Representative Hogan declared that this evidence ought to be used to measure a witness' moral value. [Footnote 27] Furthermore, Representative Dennis -- who in advocating a Rule limiting Page 490 U. S. 523 impeachment to crimen falsi convictions had recognized the impeachment Rule's applicability to civil trials -- not only debated the issue on the House floor, but also took part in the conference out of which Rule 609 emerged. See 120 Cong.Rec. 2377-2380, 39942, 40894-40895 (1974). These factors indicate that Rule 609(a)(1)'s textual limitation of the prejudice balance to criminal defendants resulted from deliberation, not oversight. [Footnote 28]Had the conferees desired to protect other parties or witnesses, they could have done so easily. Presumably they had access to all of Rule 609's precursors, particularly the drafts prepared by the House Subcommittee and the Senate Judiciary Committee, both of which protected the civil litigant as well as the criminal defendant. Alternatively, the conferees could have amended their own draft to include other parties. [Footnote 29] They did not for the simple reason that they Page 490 U. S. 524 intended that only the accused in a criminal case should be protected from unfair prejudice by the balance set out in Rule 609(a)(1).IIIThat conclusion does not end our inquiry. We next must decide whether Rule 609(a)(1) governs all prior felonies impeachment, so that no discretion may be exercised to benefit civil parties, or whether Rule 609(a)(1)'s specific reference to the criminal defendant leaves Rule 403 balancing available in the civil context.Several courts, often with scant analysis of the interrelation between Rule 403 and Rule 609(a)(1), have turned to Rule 403 to weigh prejudice and probativeness of impeaching testimony in civil cases. [Footnote 30] Judge Gibbons, dissenting in Diggs, 741 F.2d at 583, labeled this a "sensible approach." Indeed it may be. Prodigious scholarship highlighting the irrationality and unfairness of impeaching credibility with evidence of felonies unrelated to veracity indicates that judicial exercise of discretion is in order. If Congress intended otherwise, however, judges must adhere to its decision.A general statutory rule usually does not govern unless there is no more specific rule. See D. Ginsberg & Sons, Inc. v. Popkin, 285 U. S. 204, 285 U. S. 208 (1932). Rule 403, the more general provision, thus comes into play only if Rule 609, though specific regarding criminal defendants, does not pertain to civil witnesses. See Advisory Committee's Note to Proposed Rule 403, 56 F.R.D. at 218. The legislative history Page 490 U. S. 525 evinces some confusion about Rule 403's applicability to a version of Rule 609 that included no balancing language. [Footnote 31] That confusion is not an obstacle, because the structure of the Rules as enacted resolves the question.Rule 609(a) states that impeaching convictions evidence "shall be admitted." [Footnote 32] With regard to subpart (2), which governs impeachment by crimen falsi convictions, it is widely Page 490 U. S. 526 agreed that this imperative, coupled with the absence of any balancing language, bars exercise of judicial discretion pursuant to Rule 403. [Footnote 33] Subpart (1), concerning felonies, is subject to the same mandatory language; accordingly, Rule 403 balancing should not pertain to this subsection either. [Footnote 34]Any argument that Rule 403 overrides Rule 609 loses force when one considers that the rule contains its own weighing language, not only in subsection (a)(1), but also in sections (b), pertaining to older convictions, and (d), to juvenile adjudications. These latter balances, like Rule 609 in general, apply to both civil and criminal witnesses. See Fed.Rule Evid. 1101(b). Earlier drafts of subsection (a)(1) also contained balancing provisions that comprehended both types of witnesses; these, as we have shown, deliberately were eliminated by advocates of an automatic admissibility rule. The absence of balances within only two aspects of the rule -- crimen falsi convictions and felony convictions of witnesses other than those whose impeachment would prejudice a criminal defendant -- must be given its proper effect. Thus, Rule 609(a)(1)'s exclusion of civil witnesses from its weighing language is a specific command that impeachment of such witnesses be admitted, which overrides a judge's general discretionary authority under Rule 403. Courts relying on Rule 403 to balance probative value against prejudice to civil witnesses depart from the mandatory language of Rule 609. [Footnote 35] Page 490 U. S. 527In summary, we hold that Federal Rule of Evidence 609(a)(1) requires a judge to permit impeachment of a civil witness with evidence of prior felony convictions regardless of ensuant unfair prejudice to the witness or the party offering the testimony. Thus, no error occurred when the jury in this product liability suit learned through impeaching cross-examination that plaintiff Green was a convicted felon. The judgment of the Court of Appeals isAffirmed

U.S. Supreme CourtGreen v. Bock Laundry Machine Co., 490 U.S. 504 (1989)Green v. Bock Laundry Machine Co.No. 87-1816Argued January 18, 1989Decided May 22, 1989490 U.S. 504SyllabusIn petitioner Green's product liability action against respondent Bock, the manufacturer of a machine that injured Green, Bock impeached Green's testimony by eliciting admissions that he had previously been convicted of burglary and a related felony. After the jury returned a verdict for Bock, Green argued on appeal that the District Court had erred by denying his pretrial motion to exclude the impeaching evidence. The Court of Appeals summarily affirmed the District Court's ruling, following Circuit precedent established in Diggs v. Lyons, 741 F.2d 577. Diggs held, inter alia, that Rule 609(a)(1) of the Federal Rules of Evidence -- which specifies that evidence that a witness has been convicted of a felony "shall" be admitted for the purpose of attacking the witness' credibility "only if" the court determines that the probativeness of the evidence outweighs its prejudice "to the defendant" -- mandates admission for impeachment purposes of a civil plaintiff's prior felony convictions, and that the Rule's specific command forecloses the judicial exercise of discretion under Rule 403, which authorizes the exclusion of relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice.Held: Rule 609(a)(1) requires a judge to permit impeachment of a civil witness with evidence of prior felony convictions regardless of ensuant unfair prejudice to the witness or the party offering the testimony. Thus, the District Court did not err in allowing the jury to learn through impeaching cross-examination that Green was a convicted felon. Pp. 490 U. S. 509-527.(a) The Rule's text is ambiguous with respect to its applicability in civil cases. By using the restrictive phrase "to the defendant," the Rule's plain language appears not only to command the weighing of prejudice to a civil defendant, but also to compel the automatic admissibility of prior felony conviction evidence detrimental to a civil plaintiff. An interpretation that would deny a civil plaintiff the same right to impeach an adversary's testimony that it grants a civil defendant is unacceptable; therefore, the Rule cannot mean what it says as far as civil trials are concerned. Pp. 490 U. S. 509-511.(b) The history leading to enactment of the Rule as law establishes that Congress intended that only the accused in a criminal case should be Page 490 U. S. 505 protected from unfair prejudice by the balancing requirement set out in Rule 609(a)(1). Pp. 490 U. S. 511-524.(c) Rule 609(a)(1)'s exclusion of civil witnesses from its weighing language is a specific and mandatory command that impeachment of such witnesses be admitted into evidence, which command overrides a judge's general discretionary authority under Rule 403 to balance probative value against prejudice. Pp. 490 U. S. 524-526.845 F.2d 1011, affirmed.STEVENS, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, O'CONNOR, and KENNEDY, JJ., joined. SCALIA, J., filed an opinion concurring in the judgment, post, p. 490 U. S. 527. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 490 U. S. 530.

2000_98-1768

Irving L. Gornstein argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Waxman, Assistant Attorney General Ogden, Deputy Solicitor General Kneedler, Douglas N. Letter, Peter J. Smith, Margaret Jane Porter, and Patricia J. Kaeding.Michael D. Fishbein argued the cause for respondent.With him on the brief were Arno ld Levin, Sandra L. Duggan, and John J. Cummings III.*CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.Respondent represents plaintiffs who claim injuries resulting from the use of orthopedic bone screws in the pedicles of their spines. Petitioner is a consulting company that assisted the screws' manufacturer, AcroMed Corporation, in navigating the federal regulatory process for these devices. Plaintiffs say petitioner made fraudulent representations to the Food and Drug Administration (FDA or Administration) in the course of obtaining approval to market the screws. Plaintiffs further claim that such representations were at least a "but for" cause of injuries that plaintiffs sustained from the implantation of these devices: Had the representations not been made, the FDA would not have approved the devices, and plaintiffs would not have been injured. Plaintiffs sought damages from petitioner under state tort law.*Briefs of amici curiae urging reversal were filed for the Medical Device Manufacturers Association by Daniel G. Jarcho, Donald R. Stone, and Larry R. Pilot; for Medtronic Sofamor Danek, Inc., by James M. Beck and Stephen S. Phillips; for Pharmaceutical Research and Manufacturers of America by Bert W Rein, Daniel E. Troy, and Jennifer A. Shah; for the Product Liability Advisory Council, Inc., by Malcolm E. Wheeler; and for the Washington Legal Foundation by Daniel J. Popeo and Richard A. Samp.Briefs of amici curiae urging affirmance were filed for the Association of Trial Lawyers of America by Jeffrey Robert White and Frederick M. Baron; and for Public Citizen by Allison M. Zieve, Brian Wolfman, and Alan Morrison.344We hold that such claims are pre-empted by the Federal Food, Drug, and Cosmetic Act (FDCA), 52 Stat. 1040, as amended by the Medical Device Amendments of 1976 (MDA), 90 Stat. 539, 21 U. S. C. § 301 (1994 ed. and Supp. V).IRegulation of medical devices is governed by the two Acts just named. The MDA separates devices into three categories: Class I devices are those that present no unreasonable risk of illness or injury and therefore require only general manufacturing controls; Class II devices are those possessing a greater potential dangerousness and thus warranting more stringent controls; Class III devices "presen[t] a potential unreasonable risk of illness or injury" and therefore incur the FDA's strictest regulation. § 360c(a)(1)(C)(ii)(II). It is not disputed that the bone screws manufactured by AcroMed are Class III devices.Class III devices must complete a thorough review process with the FDA before they may be marketed. This premarket approval (PMA) process requires the applicant to demonstrate a "reasonable assurance" that the device is both "safe ... [and] effective under the conditions of use prescribed, recommended, or suggested in the proposed labeling thereof." §§ 360e(d)(2)(A), (B). Among other information, an application must include all known reports pertaining to the device's safety and efficacy, see § 360e(c)(1)(A); "a full statement of the components, ingredients, and properties and of the principle or principles of operation of such device," § 360e(c)(1)(B); "a full description of the methods used in, and the facilities and controls used for, the manufacture, processing, and, when relevant, packing and installation of, such device," § 360e(c)(1)(C); samples of the device (when practicable), see § 360e(c)(1)(E); and "specimens of the labeling proposed to be used for such device," § 360e(c)(1)(F). The PMA process is ordinarily quite time consuming because345the FDA's review requires an "average of 1,200 hours [for] each submission." Medtronic, Inc. v. Lohr, 518 U. S. 470, 477 (1996) (citing Hearings before the Subcommittee on Health and the Environment of the House Committee on Energy & Commerce, 100th Cong., 1st Sess. (Ser. No. 100-34), p. 384 (1987); Kahan, Pre market Approval Versus Premarket Notification: Different Routes to the Same Market, 39 Food Drug Co sm. L. J. 510, 512-514 (1984)).An exception to the PMA requirement exists for devices that were already on the market prior to the MDA's enactment in 1976. See 21 U. S. C. § 360e(b)(1)(A). The MDA allows these "predicate" devices to remain available until the FDA initiates and completes the PMA process. In order to avoid the potentially monopolistic consequences of this predicate-device exception, the MDA allows other manufacturers to distribute (also pending completion of the predicate device's PMA review) devices that are shown to be "substantially equivalent" to a predicate device. § 360e(b)(1)(B).Demonstrating that a device qualifies for this exception is known as the "§ 510(k) process," which refers to the section of the original MDA containing this provision. Section 510(k) submissions must include the following: "Proposed labels, labeling, and advertisements sufficient to describe the device, its intended use, and the directions for its use," 21 CFR § 807.87(e) (2000); "[a] statement indicating the device is similar to and/or different from other products of comparable type in commercial distribution, accompanied by data to support the statement," § 807.87(f); "[a] statement that the submitter believes, to the best of his or her knowledge, that all data and information submitted in the premarket notification are truthful and accurate and that no material fact has been omitted," § 807.87(k); and "[a]ny additional information regarding the device requested by the [FDA] Commissioner that is necessary for the Commissioner to make a finding as to whether or not the device is substan-346tially equivalent to a device in commercial distribution," § 807.87(1).In 1984, AcroMed sought § 510(k) approval for its bone screw device, indicating it for use in spinal surgery. See In re Orthopedic Bone Screw Products Liability Litigation, 159 F.3d 817, 820 (CA3 1998). The FDA denied approval on the grounds that the Class III device lacked substantial equivalence to a predicate device. See ibid. In September 1985, with the assistance of petitioner, AcroMed filed another § 510(k) application. "The application provided additional information about the ... device and again indicated its intended use in spinal surgery. The FDA again rejected the application, determining that the device was not substantially equivalent to a predicate device and that it posed potential risks not exhibited by other spinal-fixation systems." Ibid. In December 1985, AcroMed and petitioner filed a third § 510(k) application."AcroMed and [petitioner] split the ... device into its component parts, renamed them 'nested bone plates' and '[cancellous] bone screws' and filed a separate § 510(k) application for each component. In both applications, a new intended use was specified: rather than seeking clearance for spinal applications, they sought clearance to market the plates and screws for use in the long bones of the arms and legs. AcroMed and Buckman claimed that the two components were substantially equivalent to predicate devices used in long bone surgery. The FDA approved the devices for this purpose in February 1986." Ibid.Pursuant to its designation by the Judicial Panel on Multidistrict Litigation as the transferee court for In re: Orthopedic Bone Screw Liability Litigation, MDL No. 1014, the District Court for the Eastern District of Pennsylvania has been the recipient of some 2,300 civil actions related to these medical devices. Many of these actions include state-law347causes of action claiming that petitioner and AcroMed made fraudulent representations to the FDA as to the intended use of the bone screws and that, as a result, the devices were improperly given market clearance and were subsequently used to the plaintiffs' detriment. The District Court dismissed these "fraud-on-the-FDA" claims, first on the ground that they were expressly pre-empted by the MDA, and then, after our decision in Medtronic, on the ground that these claims amounted to an improper assertion of a private right of action under the MDA.l See 159 F. 3d, at 821.A divided panel of the United States Court of Appeals for the Third Circuit reversed, concluding that plaintiffs' fraud claims were neither expressly nor impliedly pre-empted. We granted certiorari, 530 U. S. 1273 (2000), to resolve a split among the Courts of Appeals on this question, see Kemp v. Medtronic, Inc., 231 F.3d 216, 233-236 (CA6 2000) (identifying split and holding such claims expressly pre-empted), and we now reverse.IIPolicing fraud against federal agencies is hardly "a field which the States have traditionally occupied," Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947), such as to warrant a presumption against finding federal pre-emption of a state-law cause of action. To the contrary, the relationship between a federal agency and the entity it regulates is inherently federal in character because the relationship originates from, is governed by, and terminates according to federal law. Cf. Boyle v. United Technologies Corp., 487 U. S. 500, 504-505 (1988) (allowing pre-emption of state law by federal common law where the interests at stake are "uniquely federal" in nature). Here, petitioner's dealings with the FDA were prompted by the MDA, and the very subject matter1 The District Court also determined that the plaintiffs' fraud claims failed for lack of proximate cause, see In re Orthopedic Bone Screw Products Liability Litigation, 159 F.3d 817, 821 (CA3 1998), but that question is not presently before us.348of petitioner's statements were dictated by that statute's provisions. Accordingly-and in contrast to situations implicating "federalism concerns and the historic primacy of state regulation of matters of health and safety," Medtronic, 518 U. S., at 485-no presumption against pre-emption obtains in this case.Given this analytical framework, we hold that the plaintiffs' state-law fraud-on-the-FDA claims conflict with, and are therefore impliedly pre-empted by, federal law.2 The conflict stems from the fact that the federal statutory scheme amply empowers the FDA to punish and deter fraud against the Administration, and that this authority is used by the Administration to achieve a somewhat delicate balance of statutory objectives. The balance sought by the Administration can be skewed by allowing fraud-on-the-FDA claims under state tort law.As described in greater detail above, the § 510(k) process sets forth a comprehensive scheme for determining whether an applicant has demonstrated that a product is substantially equivalent to a predicate device. Among other information, the applicant must submit to the FDA "[p]roposed labels, labeling, and advertisements sufficient to describe the device, its intended use, and the directions for its use," 21 CFR § 807.87(e) (2000), and a statement attesting to and explaining the similarities to and/or differences from similar devices (along with supporting data), see § 807.87(f). The FDA is also empowered to require additional necessary information. See § 807.87(1). Admittedly, the § 510(k) process lacks the PMA review's rigor: The former requires only a showing of substantial equivalence to a predicate device, while the latter involves a time-consuming inquiry into the risks and efficacy of each device. Nevertheless, to achieve its limited purpose, the § 510(k) process imposes upon applicants a variety of requirements that are designed to enable the FDA to2 In light of this conclusion, we express no view on whether these claims are subject to express pre-emption under 21 U. S. C. § 360k.349make its statutorily required judgment as to whether the device qualifies under this exception.Accompanying these disclosure requirements are various provisions aimed at detecting, deterring, and punishing false statements made during this and related approval processes. The FDA is empowered to investigate suspected fraud, see 21 U. s. C. § 372; 21 CFR § 5.35 (2000), and citizens may report wrongdoing and petition the agency to take action, § 10.30. In addition to the general criminal proscription on making false statements to the Federal Government, 18 U. s. C. § 1001 (1994 ed., Supp. V),3 the FDA may respond to fraud by seeking injunctive relief, 21 U. S. C. § 332, and civil penalties, 21 U. S. C. § 333(f)(1)(A); seizing the device, § 334(a)(2)(D); and pursuing criminal prosecutions, § 333(a). The FDA 4 thus has at its disposal a variety of enforcement options that allow it to make a measured response to suspected fraud upon the Administration.This flexibility is a critical component of the statutory and regulatory framework under which the FDA pursues difficult (and often competing) objectives. For example, with respect to Class III devices, the FDA simultaneously maintains the exhaustive PMA and the more limited § 510(k) processes in order to ensure both that medical devices are3 Title 18 U. S. C. § 1001(a) (1994 ed., Supp. V) provides: "[W]hoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact; [or] makes any materially false, fictitious or fraudulent statement or representation; or makes or uses any false writing or document knowing the same to contain any materially false, fictitious or fraudulent statement or entry; shall be fined under this title or imprisoned not more than 5 years, or both."4 The FDCA leaves no doubt that it is the Federal Government rather than private litigants who are authorized to file suit for noncompliance with the medical device provisions: "[A]ll such proceedings for the enforcement, or to restrain violations, of this chapter shall be by and in the name of the United States." 21 U. S. C. § 337(a).350reasonably safe and effective and that, if the device qualifies under the § 510(k) exception, it is on the market within a relatively short period of time. Similarly, "off-label" usage of medical devices (use of a device for some other purpose than that for which it has been approved by the FDA) is an accepted and necessary corollary of the FDA's mission to regulate in this area without directly interfering with the practice of medicine. See, e. g., Beck & Azari, FDA, OffLabel Use, and Informed Consent: Debunking Myths and Misconceptions, 53 Food & Drug L. J. 71, 76-77 (1998) (noting that courts, several States, and the "FDA itself recognizee] the value and propriety of off-label use"). Indeed, a recent amendment to the FDCA expressly states in part that "[n]othing in this chapter shall be construed to limit or interfere with the authority of a health care practitioner to prescribe or administer any legally marketed device to a patient for any condition or disease within a legitimate health care practitioner-patient relationship." 21 U. S. C. § 396 (1994 ed., Supp. V). Thus, the FDA is charged with the difficult task of regulating the marketing and distribution of medical devices without intruding upon decisions statutorily committed to the discretion of health care professionals.State-law fraud-on-the-FDA claims inevitably conflict with the FDA's responsibility to police fraud consistently with the Administration's judgment and objectives. As a practical matter, complying with the FDA's detailed regulatory regime in the shadow of 50 States' tort regimes will dramatically increase the burdens facing potential applicants-burdens not contemplated by Congress in enacting the FDCA and the MDA. Would-be applicants may be discouraged from seeking § 510(k) approval of devices with potentially beneficial off-label uses for fear that such use might expose the manufacturer or its associates (such as petitioner) to unpredictable civil liability. In effect, then, fraud-on-the-FDA claims could cause the Administration's reporting requirements to deter off-label use despite the fact that the FDCA351expressly disclaims any intent to directly regulate the practice of medicine, see 21 U. s. C. § 396 (1994 ed., Supp. V), and even though off-label use is generally accepted.5Conversely, fraud-on-the-FDA claims would also cause applicants to fear that their disclosures to the FDA, although deemed appropriate by the Administration, will later be judged insufficient in state court. Applicants would then have an incentive to submit a deluge of information that the Administration neither wants nor needs, resulting in additional burdens on the FDA's evaluation of an application. As a result, the comparatively speedy § 510(k) process could encounter delays, which would, in turn, impede competition among predicate devices and delay health care professionals' ability to prescribe appropriate off-label uses.6Respondent relies heavily on Silkwood v. Kerr-McGee Corp., 464 U. S. 238 (1984), which it reads to "creat[e] a virtually irrefutable presumption against implied preemption of private damage remedies predicated on an alleged conflict with a federal remedial scheme." Brief for Respondent 34.5 See Green & Schultz, Tort Law Deference to FDA Regulation of Medical Devices, 88 Geo. L. J. 2119, 2133 (2000) ("Physicians may prescribe drugs and devices for off-label uses"); Smith, Physician Modification of Legally Marketed Medical Devices: Regulatory Implications Under the Federal Food, Drug, and Cosmetic Act, 55 Food & Drug L. J. 245, 251-252 (2000) (discussing off-label use in terms of the "practice of medicine doctrine[, which] stands firmly for the proposition that regulatory efforts are directed primarily at device marketing by manufacturers, not device use by physicians"); Beck & Azari, FDA, Off-Label Use, and Informed Consent: Debunking Myths and Misconceptions, 53 Food & Drug L. J. 71, 72 (1998) ("Off-label use is widespread in the medical community and often is essential to giving patients optimal medical care, both of which medical ethics, FDA, and most courts recognize").6 In light of the likely impact that the fraud-on-the-FDA claims would have on the administration of the Administration's duties, we must reject respondent's contention that these claims "will ... affect only the litigants and will not have the kind of direct impact on the United States, which preemption is designed to protect from undue incursion." Brief for Respondent 30 (citing Miree v. DeKalb County, 433 U. S. 25 (1977)).352Silkwood is different from the present case, however, in several respects. Silkwood's claim was not based on any sort of fraud-on-the-agency theory, but on traditional state tort law principles of the duty of care owed by the producer of plutonium fuel pins to an employee working in its plant. See 464 U. S., at 241. Moreover, our decision there turned on specific statutory evidence that Congress "disclaimed any interest in promoting the development and utilization of atomic energy by means that fail to provide adequate remedies for those who are injured by exposure to hazardous nuclear materials." Id., at 257. In the present case, by contrast, we have clear evidence that Congress intended that the MDA be enforced exclusively by the Federal Government. 21 U. S. C. § 337(a).Respondent also suggests that we should be reluctant to find a pre-emptive conflict here because Congress included an express pre-emption provision in the MDA. See Brief for Respondent 37. To the extent respondent posits that anything other than our ordinary pre-emption principles apply under these circumstances, that contention must fail in light of our conclusion last Term in Geier v. American Honda Motor Co., 529 U. S. 861 (2000), that neither an express pre-emption provision nor a saving clause "bar[s] the ordinary working of conflict pre-emption principles." Id., at 869.We must also reject respondent's attempt to characterize both the claims at issue in Medtronic (common-law negligence action against the manufacturer of an allegedly defective pacemaker lead) and the fraud claims here as "claims arising from violations of FDCA requirements." Brief for Respondent 38. Notwithstanding the fact that Medtronic did not squarely address the question of implied pre-emption, it is clear that the Medtronic claims arose from the manufacturer's alleged failure to use reasonable care in the production of the product, not solely from the violation of FDCA requirements. See 518 U. S., at 481. In the present case,353however, the fraud claims exist solely by virtue of the FDCA disclosure requirements. Thus, although Medtronic can be read to allow certain state-law causes of actions that parallel federal safety requirements, it does not and cannot stand for the proposition that any violation of the FDCA will support a state-law claim.In sum, were plaintiffs to maintain their fraud-on-theagency claims here, they would not be relying on traditional state tort law which had predated the federal enactments in questions. On the contrary, the existence of these federal enactments is a critical element in their case. For the reasons stated above, we think this sort of litigation would exert an extraneous pull on the scheme established by Congress, and it is therefore pre-empted by that scheme.The judgment of the Court of Appeals is reversed.It is so ordered

OCTOBER TERM, 2000SyllabusBUCKMAN CO. v. PLAINTIFFS' LEGAL COMMITTEECERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUITNo. 98-1768. Argued December 4, 2000-Decided February 21, 2001Respondent represents plaintiffs claiming injuries caused by the use of orthopedic bone screws in the pedicles of their spines. Petitioner assisted the screws' manufacturer in securing approval for the devices from the Food and Drug Administration (FDA or Administration), which has regulatory authority under the Federal Food, Drug, and Cosmetic Act (FDCA), as amended by the Medical Devices Amendments of 1976 (MDA). While the screws are in a class that normally must go through a time-consuming process to receive premarket approval (PMA), they were approved under an exception, known as the § 510(k) process, for predicate devices-devices that were already on the market when the MDA was enacted-and for devices that are "substantially equivalent" to predicate devices. The § 510(k) application filed by petitioner and the manufacturer sought clearance to market the screws for use in arm and leg bones, not the spine. Claiming that the FDA would not have approved the screws had petitioner not made fraudulent representations regarding their intended use, plaintiffs sought damages under state tort law. The District Court dismissed these fraud-on-the-FDA claims on, inter alia, the ground that they were pre-empted by the MDA. The Third Circuit reversed.Held: The plaintiffs' state-law fraud-on-the-FDA claims conflict with, and are therefore impliedly pre-empted by, the FDCA, as amended by the MDA. Pp. 347-353.(a) The relationship between a federal agency and the entity it regulates is inherently federal because it originates from, is governed by, and terminates according to federal law. Because petitioner's FDA dealings were prompted by the MDA and the very subject matter of petitioner's statements were dictated by that statute-and in contrast to situations implicating "federalism concerns and the historic primacy of state regulation of [health and safety matters]," Medtronic, Inc. v. Lohr, 518 U. S. 470, 485-no presumption against pre-emption obtains in this case. The conflict here stems from the fact that the federal statutory scheme amply empowers the FDA to punish and deter fraud against the Administration, and the Administration uses this authority to achieve a delicate balance of statutory objectives that can be skewed by allowing state-law fraud-on-the-FDA claims. While the §510(k)342process lacks the PMA review's rigor, the former does set forth a comprehensive scheme for determining substantial equivalence with a predicate device. Other provisions give the FDA enforcement options that allow it to make a measured response to suspected fraud upon the Administration. This flexibility is a critical component of the framework under which the FDA pursues its difficult (and often competing) objectives of regulating medical device marketing and distribution without intruding upon decisions committed by the FDCA to health care professionals. Pp. 347-350.(b) State-law fraud-on-the-FDA claims inevitably conflict with the FDA's responsibility to police fraud consistently with the Administration's judgment and objectives. Complying with the FDA's detailed regulatory regime in the shadow of 50 States' tort regimes will dramatically increase the burdens facing potential applicants, who might be deterred from seeking approval of devices with potentially beneficial offlabel uses-an accepted medical practice in which a device is used for some other purpose than that for which the FDA approved it-for fear of being exposed to unpredictable civil liability. Conversely, applicants' fear that their disclosures to the FDA will later be judged insufficient in state court might lead them to submit information that the Administration neither needs nor wants, thus delaying the comparatively speedy § 510(k) process, and, in turn, impeding competition and delaying the prescription of appropriate off-label uses. Respondent's reliance on Silkwood v. Kerr-McGee Corp., 464 U. S. 238, is misplaced. Silkwood was based on traditional state tort law principles, not on a fraud-on-theagency theory, and, unlike Silkwood, there is clear evidence here that Congress intended that the MDA be enforced exclusively by the Federal Government. In addition, the MDA's express pre-emption provision does not bar the ordinary working of conflict pre-emption principles. Geier v. American Honda Motor Co., 529 U. S. 861, 869. And although Medtronic can be read to allow certain state-law causes of actions that parallel federal safety requirements, it does not stand for the proposition that any FDCA violation will support a state-law claim. Pp. 350-353.159 F.3d 817, reversed.REHNQUIST, C. J., delivered the opinion of the Court, in which O'CONNOR, SCALIA, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. STEVENS, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined, post, p. 353.Kenneth S. Geller argued the cause for petitioner. With him on the briefs were Alan E. Untereiner and Sharon Swingle.343Full Text of Opinion

2001_01-518

Syllabusdifferent and additional to any burden imposed by other penalties. Having identified this burden, the Court must examine the petitioning activity it affects. The Bill Johnson's Court said that the Board could enjoin baseless retaliatory suits because they fell outside the First Amendment and thus were analogous to "false statements." 461 U. S., at 743. At issue here, however, is a class of reasonably based but unsuccessful lawsuits. Whether this class falls outside the Petition Clause at least presents a difficult constitutional question, given the following considerations. First, even though all lawsuits in this class are unsuccessful, the class includes suits involving genuine grievances because genuineness does not turn on whether the grievance succeeds. Second, even unsuccessful but reasonably based suits advance some First Amendment interests. Finally, the analogy of baseless suits to false statements does not directly extend to suits that are unsuccessful but reasonably based. Because the Board confines its penalties to unsuccessful suits brought with a retaliatory motive, this Court must also consider the significance of that particular limitation, which is fairly included within the question presented. pp. 528-533.(c) The Board's definition of a retaliatory suit as one brought with a motive to interfere with the exercise of protected NLRA § 7 rights covers a substantial amount of genuine petitioning. For example, an employer's suit to stop what the employer reasonably believes is illegal union conduct may interfere with or deter some employees' exercise of NLRA rights. But if the employer's motive still reflects a subjectively genuine desire to test the conduct's legality, then declaring the suit illegal affects genuine petitioning. The Board also claims to rely on evidence of antiunion animus to infer retaliatory motive. Yet ill will is not uncommon in litigation, and this Court, in other First Amendment contexts, has found it problematic to regulate some demonstrably false expression based on the presence of ill will. Thus, the difficult constitutional question is not made significantly easier by the Board's retaliatory motive limitation. The final question is whether in light of the NLRA's important goals, the Board may nevertheless burden an unsuccessful but reasonably based suit that was brought with a retaliatory purpose. While the speech burdens are different here than in the antitrust context, the Court is still faced with the difficult constitutional question whether a class of petitioning may be declared unlawful when a substantial portion is subjectively and objectively genuine. This Court avoided a similarly difficult First Amendment issue in Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568, 575, by adopting a limiting construction of the relevant NLRA provision. Section 158(a)(I)'s prohibition on interfering, restraining, or coercing is facially as broad as the prohibition in DeBartolo, and it need519not be read so broadly as to reach the entire class of cases the Board has deemed retaliatory. Because nothing in § 158(a)(1)'s text indicates that it must be read to reach all reasonably based but unsuccessful suits filed with a retaliatory purpose, the Court declines to do so. And because the Board's standard for imposing NLRA liability allows it to penalize such suits, its standard is invalid. pp. 533-537.246 F.3d 619, reversed and remanded.O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., joined. SCALIA, J., filed a concurring opinion, in which THOMAS, J., joined, post, p. 537. BREYER, J., filed an opinion concurring in part and concurring in the judgment, in which STEVENS, SOUTER, and GINSBURG, JJ., joined, post, p. 538.Maurice Baskin argued the cause and filed briefs for petitioner.Deputy Solicitor General Wallace argued the cause for respondents. With him on the brief for the National Labor Relations Board were Solicitor General Olson, Austin C. Schlick, Arthur F. Rosenfeld, John H. Ferguson, Norton J. Come, and John Emad Arbab. Sandra Rae Benson, Theodore Franklin, Jonathan P. Hiatt, James B. Coppess, Peter D. Nussbaum, Meera Trehan, and Laurence Gold filed a brief for respondent Unions. *JUSTICE O'CONNOR delivered the opinion of the Court. Petitioner sued respondent unions, claiming that their lobbying, litigation, and other concerted activities violated federallabor law and antitrust law. After petitioner lost on or withdrew each of its claims, the National Labor Relations Board decided petitioner had violated federal labor law by prosecuting an unsuccessful suit with a retaliatory motive. The Court of Appeals affirmed. Because we find the Board*Briefs of amici curiae urging reversal were filed for the Chamber of Commerce of the United States et al. by Stanley R. Strauss, Stephen A. Bokat, Robin S. Conrad, and Joshua A. Ulman; and for the Society for Human Resource Management et al. by Mark A. Carter and Daniel V. Yager.520lacked authority to assess liability using this standard, we reverse and remand.IPetitioner, an industrial general contractor, received a contract to modernize a California steel mill near the beginning of 1987. 246 F.3d 619, 621 (CA6 2001). According to petitioner, various unions attempted to delay the project because petitioner's employees were nonunion. Ibid. That September, petitioner and the mill operator filed suit against those unions in the District Court for the Northern District of California. App. to Pet. for Cert. 33a. The suit was based on the following basic allegations: First, the unions had lobbied for adoption and enforcement of an emissions standard, despite having no real concern the project would harm the environment. 246 F. 3d, at 621. Second, the unions had handbilled and picketed at petitioner's site-and also encouraged strikes among the employees of petitioner's subcontractors-without revealing reasons for their disagreement. Ibid. Third, to delay the construction project and raise costs, the unions had filed an action in state court alleging violations of California's Health and Safety Code. Id., at 621-622. Finally, the unions had launched grievance proceedings against petitioner's joint venture partner based on inapplicable collective bargaining agreements. Id., at 622.Initially, petitioner and the mill operator sought damages under § 303 of the Labor-Management Relations Act, 1947 (LMRA), 61 Stat. 158, as amended, 29 U. S. C. § 187, which provides a cause of action against labor organizations for injuries caused by secondary boycotts prohibited under § 158(b)(4). 246 F. 3d, at 622. But after the District Court granted the unions' motion for summary judgment on the plaintiffs' lobbying- and grievance-related claims, the plaintiffs amended their complaint to allege that the unions' activities violated §§ 1 and 2 of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. §§ 1-2, which prohibit certain agree-521ments in restraint of trade, monopolization, and attempts to monopolize. 246 F. 3d, at 622. The District Court dismissed the amended complaint, however, because it realleged claims that had already been decided. Id., at 622-623. The District Court also dismissed the plaintiffs' claim regarding the unions' state court lawsuit since the plaintiffs had no evidence that the suit was not reasonably based and because two unions that the plaintiffs sued were never parties to that state court action. Id., at 623.The plaintiffs filed a second amended complaint. It included their remaining claims but again realleged claims that had already been decided. Ibid.; App. 32-33. The District Court dismissed the decided claims and imposed sanctions on the plaintiffs under Federal Rule of Civil Procedure 11. 246 F. 3d, at 623. At that point, the mill operator dismissed its remaining claims with prejudice. Ibid. The District Court then granted summary judgment to the unions on petitioner's antitrust claim once petitioner was unable to show the unions had formed a combination with nonlabor entities for an illegitimate purpose. Ibid. Petitioner dismissed its remaining claims and appealed. Id., at 623-624.The United States Court of Appeals for the Ninth Circuit affirmed the dismissal of petitioner's antitrust claim. It held that the District Court erred in requiring petitioner to prove that the unions combined with nonlabor entities for an illegitimate purpose, but found the error harmless since the unions had antitrust immunity when lobbying officials or petitioning courts and agencies, unless the activity was a sham. USS-POSCO Industries v. Contra Costa County Bldg. & Const. Trades Council, AFL-CIO, 31 F.3d 800, 810 (CA9 1994). Petitioner did not argue that the unions' litigation activity had been objectively baseless, but maintained that "the unions [had] engaged in a pattern of automatic petitioning of governmental bodies ... without regard to ... the merits of said petitions." Ibid. (internal quotation marks omitted; emphasis added). The Ninth Circuit allowed that522petitioner's claim, if proved, could overcome the unions' antitrust immunity, but rejected it nonetheless because "fifteen of the twenty-nine [actions filed by the unions] ... have proven successful. The fact that more than half of all the actions ... turn out to have merit cannot be reconciled with the charge that the unions were filing [them] willy-nilly without regard to success." Id., at 811 (footnote omitted).The Ninth Circuit reversed the District Court's award of Rule 11 sanctions, however, after petitioner explained that it had realleged decided claims based on Circuit precedent suggesting that doing so was necessary to preserve them on appeal. Ibid. Although the Ninth Circuit decided that rule did not apply to amended complaints following summary judgment, it held that petitioner's view was not frivolous and that its counsel could not be blamed for "err[ing] on the side of caution." Id., at 812.In the meantime, two unions had lodged complaints against petitioner with the National Labor Relations Board (Board), 246 F. 3d, at 624, and after the federal proceedings ended, the Board's general counsel issued an administrative complaint against petitioner, alleging that it had violated § 8(a)(1) of the National Labor Relations Act (NLRA), 49 Stat. 452, as amended, 29 U. S. C. § 158(a)(1), by filing and maintaining the federal lawsuit. App. to Pet. for Cert. 29a. Section 8(a)(1) prohibits employers from restraining, coercing, or interfering with employees' exercise of rights related to self-organization, collective bargaining, and other concerted activities. 29 U. S. C. §§ 157, 158(a)(1).A three-member panel of the Board addressed crossmotions for summary judgment and ruled in favor of the general counsel. The panel determined that petitioner's federal lawsuit had been unmeritorious because all of petitioner's claims were dismissed or voluntarily withdrawn with prejudice. App. to Pet. for Cert. 30a, 47a, 49a. The panel then examined whether petitioner's suit had been filed to retaliate against the unions for engaging in activities protected under523the NLRA. The panel first concluded that the unions' conduct was protected activity, id., at 50a-59a, and then decided that petitioner's lawsuit had been unlawfully motivated because it was "directed at protected conduct" and "necessarily tended to discourage similar protected activity," and because petitioner admitted it had filed suit" 'to stop certain [u]nion conduct which it believed to be unprotected,'" id., at 59a60a. The panel found additional evidence of retaliatory motive because petitioner had sued some unions that were not parties to the state court lawsuit. Id., at 60a. The panel also found evidence of retaliatory motive because petitioner's LMRA claims had an "utter absence of merit" and had been dismissed on summary judgment. Id., at 61a. After determining that petitioner's suit had violated the NLRA because it was unsuccessful and retaliatory, the panel ordered petitioner to cease and desist from prosecuting such suits and to post notice to its employees admitting it had been found to have violated the NLRA and promising not to pursue such litigation in the future. Id., at 65a-67a. The panel also ordered petitioner to pay the unions' legal fees and expenses incurred in defense of the federal suit. Id., at 65a.Petitioner sought review of the Board's decision in the United States Court of Appeals for the Sixth Circuit, and the Board cross-petitioned for enforcement of its order. The Sixth Circuit granted the Board's petition. Relying on Bill Johnson's Restaurants, Inc. v. NLRB, 461 U. S. 731, 747 (1983), the Sixth Circuit held that "because the judicial branch of government had already determined that [petitioner's] claims against the unions were unmeritorious or dismissed, evidence of a simple retaliatory motive ... suffice[d] to adjudge [petitioner] of committing an unfair labor practice." 246 F. 3d, at 628. The court rejected petitioner's argument that under Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., 508 U. S. 49 (1993), "only baseless or 'sham' suits serve to restrict the otherwise unfettered right to seek court resolution of differences."524246 F. 3d, at 629. Instead, the court decided Professional Real Estate Investors was inapplicable because its immunity standard had been established in the antitrust context without reference to any standard for determining if completed litigation violates the NLRA. 246 F. 3d, at 629. The Sixth Circuit found that substantial evidence supported the Board's inference of retaliatory motive because petitioner had filed an unmeritorious suit, realleged previously decided claims, sought treble damages on its antitrust claim, and sought damages from unions not parties to the state court suit. Id., at 629-631. The court also upheld the Board's award of attorney's fees. Id., at 632.Petitioner sought review of the Sixth Circuit's judgment by a petition for certiorari that raised four separate questions. We granted certiorari on the following rephrased question:"Did the Court of Appeals err in holding that under Bill Johnson's Restaurants, Inc. v. NLRB, 461 U. S. 731 (1983), the NLRB may impose liability on an employer for filing a losing retaliatory lawsuit, even if the employer could show the suit was not objectively baseless under Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., 508 U. S. 49 (1993)7" 534 U. S. 1074 (2002).We now reverse the judgment of the Sixth Circuit and remand.IIThe First Amendment provides, in relevant part, that "Congress shall make no law ... abridging ... the right of the people ... to petition the Government for a redress of grievances." We have recognized this right to petition as one of "the most precious of the liberties safeguarded by the Bill of Rights," Mine Workers v. Illinois Bar Assn., 389 U. S. 217, 222 (1967), and have explained that the right is implied525by "[t]he very idea of a government, republican in form," United States v. Cruikshank, 92 U. S. 542, 552 (1876).We have also considered the right to petition when interpreting federal law. In the antitrust context, for example, we held that "the Sherman Act does not prohibit ... persons from associating ... in an attempt to persuade the legislature or the executive to take particular action with respect to a law that would produce a restraint or a monopoly." Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U. S. 127, 136 (1961). We based our interpretation in part on the principle that we would not "lightly impute to Congress an intent to invade ... freedoms" protected by the Bill of Rights, such as the right to petition. Id., at 138. We later made clear that this antitrust immunity "shields from the Sherman Act a concerted effort to influence public officials regardless of intent or purpose." Mine Workers v. Pennington, 381 U. S. 657, 670 (1965).These antitrust immunity principles were then extended to situations where groups "use ... courts to advocate their causes and points of view respecting resolution of their business and economic interests vis-a-vis their competitors." California Motor Transport Co. v. Trucking Unlimited, 404 U. S. 508, 511 (1972) (emphasis added). We thus made explicit that "the right to petition extends to all departments of the Government," and that "[t]he right of access to the courts is ... but one aspect of the right of petition." Id., at 510.Even then, however, we emphasized that such immunity did not extend to "illegal and reprehensible practice[s] which may corrupt the ... judicial proces[s]," id., at 513, hearkening back to an earlier statement that antitrust immunity would not extend to lobbying "ostensibly directed toward influencing governmental action [that] is a mere sham to cover what is actually nothing more than an attempt to interfere directly with the business relationships of a competitor." Noerr, supra, at 144. This line of cases thus establishes that while526genuine petitioning is immune from antitrust liability, sham petitioning is not.In Professional Real Estate Investors, we adopted a twopart definition of sham antitrust litigation: first, it "must be objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits"; second, the litigant's subjective motivation must "concea[l] an attempt to interfere directly with the business relationships of a competitor ... through the use [of] the governmental process-as opposed to the outcome of that process-as an anticompetitive weapon." 508 U. S., at 60-61 (internal quotation marks omitted; emphasis in original). For a suit to violate the antitrust laws, then, it must be a sham both objectively and subjectively.This case raises the same underlying issue of when litigation may be found to violate federal law, but this time with respect to the NLRA rather than the Sherman Act. Recognizing this underlying connection, we previously decided whether the Board could enjoin state court lawsuits by analogizing to the antitrust context. In Bill Johnson's, a restaurant owner had filed a state court lawsuit against individuals who picketed its restaurant after a waitress was fired. 461 U. S., at 733-734. The owner alleged that the picketing was harassing and dangerous and that a leaflet distributed by the picketers was libelous. Id., at 734. The waitress filed a charge with the Board claiming the suit had been filed in retaliation for participation in protected activities. Id., at 735. The Administrative Law Judge (ALJ) decided that the owner's suit lacked a reasonable basis and was intended to penalize protected activity based on his assessment of the evidence and its credibility. Id., at 736, 744. The Board upheld this determination and ordered the owner to withdraw its suit and pay the defendants' legal expenses. Id., at 737. The Court of Appeals enforced the order. Ibid.We vacated the judgment, however, holding that First Amendment and federalism concerns prevented "[t]he filing527and prosecution of a well-founded lawsuit" from being "enjoined as an unfair labor practice, even if it would not have been commenced but for the plaintiff's desire to retaliate against the defendant for exercising rights protected by the [NLRA]." Id., at 737, 743. We also held that the Board may not decide that a suit is baseless by making credibility determinations, as the ALJ had done, when genuine issues of material fact or state law exist. Id., at 745, 746-747. In recognition of our sham exception to antitrust immunity, however, we reasoned that "[w]e should follow a similar course under the NLRA" and held that the Board could enjoin baseless suits brought with a retaliatory motive, id., at 744 (citing California Motor Transport, supra), and then remanded for further proceedings, 461 U. S., at 749.At issue today is not the standard for enjoining ongoing suits but the standard for declaring completed suits unlawful. In Bill Johnson's, we remarked in dicta about that situation:"If judgment goes against the employer in the state court, ... or if his suit is withdrawn or is otherwise shown to be without merit, the employer has had its day in court, the interest of the State in providing a forum for its citizens has been vindicated, and the Board may then proceed to adjudicate the ... unfair labor practice case. The employer's suit having proved unmeritorious, the Board would be warranted in taking that fact into account in determining whether the suit had been filed in retaliation for the exercise of the employees' [NLRA] § 7 rights. If a violation is found, the Board may order the employer to reimburse the employees whom he had wrongfully sued for their attorney's fees and other expenses. It may also order any other proper relief that would effectuate the policies of the [NLRA]." Id., at 747.Under this standard, the Board could declare that a lost or withdrawn suit violated the NLRA if it was retaliatory. In528Bill Johnson's, however, the issue before the Court was whether the Board could enjoin an ongoing state lawsuit without finding that the suit lacked a reasonable basis in law or fact. Id., at 733. To resolve that issue, we had no actual need to decide whether the Board could declare unlawful reasonably based suits that were ultimately unsuccessful. Indeed, the Board had yet to declare such a suit unlawful: It had attempted to enjoin an uncompleted suit that it had declared baseless. Id., at 736-737. Nor did we have occasion to consider the precise scope of the term "retaliation." See infra, at 533, 537.Moreover, although our statements regarding completed litigation were intended to guide further proceedings, we did not expressly order the Board to adhere to its prior finding of unlawfulness under the standard we stated. See 461 U. S., at 749-750, n. 15 ("[O]n remand the Board may reinstate its finding that petitioner acted unlawfully ... if the Board adheres to its previous finding that the suit was filed for a retaliatory purpose" (emphasis added)). Thus, exercising our "customary refusal to be bound by dicta," U. S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U. S. 18, 24 (1994), we turn to the question presented.IIIBecause of its objective component, the sham litigation standard in Professional Real Estate Investors protects reasonably based petitioning from antitrust liability. Because of its subjective component, it also protects petitioning that is unmotivated by anticompetitive intent, whether it is reasonably based or not. The Board admits such broad immunity is justified in the antitrust context because it properly "balances the risk of anticompetitive lawsuits against the chilling effect" on First Amendment petitioning that might be caused by "the treble-damages remedy and other distinct features of antitrust litigation," such as the fact that antitrust claims may be privately initiated and may impose high529discovery costs. Brief for Respondent NLRB 40-41. According to the Board, however, such broad protection is unnecessary in the labor law context because, outside of the LMRA, enforcement of the NLRA requires the Board's general counsel to first authorize the issuance of an administrative complaint; thus, an adjudication cannot be launched solely by private action. See 29 U. S. C. § 153(d); NLRB v. Food & Commercial Workers, 484 U. S. 112, 118-119 (1987). Nor can the Board issue punitive remedies, see Republic Steel Corp. v. NLRB, 311 U. S. 7, 10-12 (1940), and instead is limited to restoring the previolation status quo, see id., at 12-13; NLRB v. J. H. Rutter-Rex Mfg. Co., 396 U. S. 258, 265 (1969). The Board also allows "little prehearing discovery." NLRB v. Robbins Tire & Rubber Co., 437 U. S. 214, 236 (1978).At most, however, these arguments demonstrate that the threat of an antitrust suit may pose a greater burden on petitioning than the threat of an NLRA adjudication. This does not mean the burdens posed by the NLRA raise no First Amendment concerns. To determine if they do, we must first isolate those burdens.Here, the Board's determination that petitioner's lawsuit violated the NLRA resulted in an order requiring petitioner to post certain notices, refrain from filing similar suits, and pay the unions' attorney's fees. Petitioner did not challenge below the Board's authority to impose the notice and injunction penalties upon a finding of illegality, but did challenge the Board's authority to award attorney's fees, albeit unsuccessfully. 246 F. 3d, at 631-632. Although petitioner sought review of the fee issue, Pet. for Cert. i, we did not grant certiorari on that specific question, instead asking the parties to address whether the Board may impose liability for a retaliatory lawsuit that was unsuccessful even if it was not objectively baseless. 534 U. S. 1074 (2002).As we see it, a threshold question here is whether the Board may declare that an unsuccessful retaliatory lawsuit530violates the NLRA even if reasonably based. If it may, the resulting finding of illegality is a burden by itself. In addition to a declaration of illegality and whatever legal consequences flow from that, the finding also poses the threat of reputational harm that is different and additional to any burden posed by other penalties, such as a fee award. Because we can resolve this case by looking only at the finding of illegality, we need not decide whether the Board otherwise has authority to award attorney's fees when a suit is found to violate the NLRA.Having identified this burden, we must examine the petitioning activity it affects. In Bill Johnson's, we held that the Board may not enjoin reasonably based state court lawsuits in part because of First Amendment concerns. 461 U. S., at 742-743. We implied those concerns are no longer present when a suit ends because "the employer has had its day in court." Id., at 747. By analogy to other areas of First Amendment law, one might assume that any concerns related to the right to petition must be greater when enjoining ongoing litigation than when penalizing completed litigation. After all, the First Amendment historically provides greater protection from prior restraints than after-the-fact penalties, see Alexander v. United States, 509 U. S. 544, 553554 (1993), and enjoining a lawsuit could be characterized as a prior restraint, whereas declaring a completed lawsuit unlawful could be characterized as an after-the-fact penalty on petitioning. But this analogy at most suggests that injunctions may raise greater First Amendment concerns, not that after-the-fact penalties raise no concerns. Likewise, the fact that Bill Johnson's allowed certain baseless suits to be enjoined tells little about the propriety of imposing penalties on various classes of nonbaseless suits.We said in Bill Johnson's that the Board could enjoin baseless retaliatory suits because they fell outside of the First Amendment and thus were analogous to "false statements." 461 U. S., at 743. We concluded that "[j]ust as false state-531ments are not immunized by the First Amendment right to freedom of speech, baseless litigation is not immunized by the First Amendment right to petition." Ibid. (citations omitted). While this analogy is helpful, it does not suggest that the class of baseless litigation is completely unprotected:At most, it indicates such litigation should be unprotected "just as" false statements are. And while false statements may be unprotected for their own sake, "[t]he First Amendment requires that we protect some falsehood in order to protect speech that matters." Gertz v. Robert Welch, Inc., 418 U. S. 323, 341 (1974) (emphasis added); id., at 342 (noting the need to protect some falsehoods to ensure that "the freedoms of speech and press [receive] that 'breathing space' essential to their fruitful exercise" (quoting NAACP v. Button, 371 U. S. 415, 433 (1963))). An example of such "breathing space" protection is the requirement that a public official seeking compensatory damages for defamation prove by clear and convincing evidence that false statements were made with knowledge or reckless disregard of their falsity. See New York Times Co. v. Sullivan, 376 U. S. 254, 279-280, 285 (1964).It is at least consistent with these "breathing space" principles that we have never held that the entire class of objectively baseless litigation may be enjoined or declared unlawful even though such suits may advance no First Amendment interests of their own. Instead, in cases like Bill Johnson's and Professional Real Estate Investors, our holdings limited regulation to suits that were both objectively baseless and subjectively motivated by an unlawful purpose. But we need not resolve whether objectively baseless litigation requires any "breathing room" protection, for what is at issue here are suits that are not baseless in the first place. Instead, as an initial matter, we are dealing with the class of reasonably based but unsuccessful lawsuits. But whether this class of suits falls outside the scope of the First Amend-532ment's Petition Clause at the least presents a difficult constitutional question, given the following considerations.First, even though all the lawsuits in this class are unsuccessful, the class nevertheless includes a substantial proportion of all suits involving genuine grievances because the genuineness of a grievance does not turn on whether it succeeds. Indeed, this is reflected by our prior cases which have protected petitioning whenever it is genuine, not simply when it triumphs. See, e. g., Professional Real Estate Investors, 508 U. S., at 58-61 (protecting suits from antitrust liability whenever they are objectively or subjectively genuine); Pennington, 381 U. S., at 670 (shielding from antitrust immunity any "concerted effort to influence public officials"). Nor does the text of the First Amendment speak in terms of successful petitioning-it speaks simply of "the right of the people ... to petition the Government for a redress of grievances. "Second, even unsuccessful but reasonably based suits advance some First Amendment interests. Like successful suits, unsuccessful suits allow the" 'public airing of disputed facts,'" Bill Johnson's, supra, at 743 (quoting Balmer, Sham Litigation and the Antitrust Law, 29 Buffalo L. Rev. 39, 60 (1980)), and raise matters of public concern. They also promote the evolution of the law by supporting the development of legal theories that may not gain acceptance the first time around. Moreover, the ability to lawfully prosecute even unsuccessful suits adds legitimacy to the court system as a designated alternative to force. See Andrews, A Right of Access to Court Under the Petition Clause of the First Amendment: Defining the Right, 60 Ohio St. L. J. 557, 656 (1999) (noting the potential for avoiding violence by the filing of unsuccessful claims).Finally, while baseless suits can be seen as analogous to false statements, that analogy does not directly extend to suits that are unsuccessful but reasonably based. For even if a suit could be seen as a kind of provable statement, the533fact that it loses does not mean it is false. At most it means the plaintiff did not meet its burden of proving its truth. That does not mean the defendant has proved-or could prove-the contrary.Because the Board confines its penalties to unsuccessful suits brought with a retaliatory motive, however, we must also consider the significance of that particular limitation, which is fairly included within the question presented. See 534 U. S. 1074 (2002) (granting certiorari on whether the Board "may impose liability on an employer for filing a losing retaliatory lawsuit, even if the employer could show the suit was not objectively baseless" (emphasis added)).IVIn the context of employer-filed lawsuits, we previously indicated that retaliatory suits are those "filed in retaliation for the exercise of the employees' [NLRA] § 7 rights." Bill Johnson's, 461 U. S., at 747. Because we did not specifically address what constitutes "retaliation," however, the precise scope of that term was not defined. The Board's view is that a retaliatory suit is one "brought with a motive to interfere with the exercise of protected [NLRA §]7 rights." Brief for Respondent NLRB 46 (emphasis added). As we read it, however, the Board's definition broadly covers a substantial amount of genuine petitioning.For example, an employer may file suit to stop conduct by a union that he reasonably believes is illegal under federal law, even though the conduct would otherwise be protected under the NLRA. As a practical matter, the filing of the suit may interfere with or deter some employees' exercise of NLRA rights. Yet the employer's motive may still reflect only a subjectively genuine desire to test the legality of the conduct. Indeed, in this very case, the Board's first basis for finding retaliatory motive was the fact that petitioner's suit related to protected conduct that petitioner believed was unprotected. App. to Pet. for Cert. 59a-60a. If such534a belief is both subjectively genuine and objectively reasonable, then declaring the resulting suit illegal affects genuine petitioning.The Board also claims to rely on evidence of antiunion animus to infer retaliatory motive. Brief for Respondent NLRB 47. Yet ill will is not uncommon in litigation. Cf. Professional Real Estate Investors, 508 U. S., at 69 (STEVENS, J., concurring in judgment) ("We may presume that every litigant intends harm to his adversary"). Disputes between adverse parties may generate such ill will that recourse to the courts becomes the only legal and practical means to resolve the situation. But that does not mean such disputes are not genuine. As long as a plaintiff's purpose is to stop conduct he reasonably believes is illegal, petitioning is genuine both objectively and subjectively. See id., at 60-61.Even in other First Amendment contexts, we have found it problematic to regulate some demonstrably false expression based on the presence of ill will. For example, we invalidated a criminal statute prohibiting false statements about public officials made with ill will. See Garrison v. Louisiana, 379 U. S. 64, 73-74 (1964) ("Debate on public issues will not be uninhibited if the speaker must run the risk that it will be proved in court that he spoke out of hatred"). Indeed, the requirement that private defamation plaintiffs prove the falsity of speech on matters of public concern may indirectly shield much speech concealing ill motives. See Philadelphia Newspapers, Inc. v. Hepps, 475 U. S. 767, 776777 (1986); see also Hustler Magazine, Inc. v. Falwell, 485 U. S. 46, 53 (1988) (prohibiting use of ill motive to create liability for speech in the realm of public debate about public figures).For these reasons, the difficult constitutional question we noted earlier, supra, at 531-533, is not made significantly easier by the Board's retaliatory motive limitation since that535limitation fails to exclude a substantial amount of petitioning that is objectively and subjectively genuine.The final question is whether, in light of the important goals of the NLRA, the Board may nevertheless burden an unsuccessful but reasonably based suit when it concludes the suit was brought with a retaliatory purpose. As explained above, supra, at 525-526, we answered a similar question in the negative in the antitrust context. And while the burdens on speech at issue in this case are different from those at issue in Professional Real Estate Investors, we are still faced with a difficult constitutional question: namely, whether a class of petitioning may be declared unlawful when a substantial portion of it is subjectively and objectively genuine.In a prior labor law case, we avoided a similarly difficult First Amendment issue by adopting a limiting construction of the relevant NLRA provision. See Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568, 575 (1988). At issue there was the scope of § 8(b)(4) of the NLRA, 29 U. S. C. § 158(b)(4), which limits unions from "threaten[ing], coerc[ing], or restrain[ing] any person engaged in commerce or in an industry affecting commerce" with respect to certain prohibited purposes. § 158(b)(4)(ii). The Board read this provision to cover handbilling that urged customers not to shop at a mall where the purpose of the hand billing was to convince the mall's proprietor to influence a tenant to quit dealing with a nonunion contractor. 485 U. S., at 574. A prior case had held that the same statutory prohibition on threats, coercion, and restraints was "'nonspecific, indeed vague,' and [thus] should be interpreted with 'caution' and not given a 'broad sweep.'" Id., at 578 (quoting NLRB v. Drivers, 362 U. S. 274, 290 (1960)). Likewise, in DeBartolo, we found that the statutory provisions and their legislative history indicated no clear intent to reach the hand billing in question, 485 U. S., at 578-588, and so we simply read the statute not to cover it,536thereby avoiding the First Amendment question altogether, id., at 588.Here, the relevant NLRA provision is § 8(a)(1), 29 U. S. c. § 158(a)(1), which prohibits employers from "interfer[ing] with, restrain[ing], or coerc[ing] employees in the exercise of the rights guaranteed in [29 U. S. C. § ]157." Section 157 provides, in relevant part:"Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection .... "Section 158(a)(1)'s prohibition on interfering, restraining, or coercing in connection with the above rights is facially as broad as the prohibition at issue in DeBartolo. And while it might be read to reach the entire class of suits the Board has deemed retaliatory, it need not be read so broadly. Indeed, even considered in context, there is no suggestion that these provisions were part of any effort to cover that class of suits. See §§ 158(a)(2)-(5) (generally prohibiting employers from interfering with the formation and administration of a union, from discriminating in employment practices based on union membership, from discharging employees who provide testimony or file charges under the NLRA, and from refusing to bargain collectively with employee representatives).Because there is nothing in the statutory text indicating that § 158(a)(1) must be read to reach all reasonably based but unsuccessful suits filed with a retaliatory purpose, we decline to do so. Because the Board's standard for imposing liability under the NLRA allows it to penalize such suits, its standard is thus invalid. We do not decide whether the Board may declare unlawful any unsuccessful but reasonably based suits that would not have been filed but for a motive to impose the costs of the litigation process, regardless of the537outcome, in retaliation for NLRA protected activity, since the Board's standard does not confine itself to such suits. Likewise, we need not decide what our dicta in Bill Johnson's may have meant by "retaliation." 461 U. S., at 747; see supra, at 527-528. Finally, nothing in our holding today should be read to question the validity of common litigation sanctions imposed by courts themselves-such as those authorized under Rule 11 of the Federal Rules of Civil Procedure-or the validity of statutory provisions that merely authorize the imposition of attorney's fees on a losing plaintiff.The judgment of the Court of Appeals for the Sixth Circuit is therefore reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 2001SyllabusBE&K CONSTRUCTION CO. v. NATIONAL LABOR RELATIONS BOARD ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUITNo. 01-518. Argued April 16, 2002-Decided June 24, 2002Petitioner, who had a contract to modernize a steel mill, and the mill owner filed a federal lawsuit against respondent unions, claiming that the unions had engaged in lobbying, litigation, and other concerted activities in order to delay the project because petitioner had nonunion employees. Ultimately, petitioner lost on or withdrew each of its claims. In the meantime, two unions lodged complaints against petitioner with respondent National Labor Relations Board (Board). After the federal court proceedings ended, the Board's general counsel issued an administrative complaint, alleging that petitioner, by filing and maintaining its lawsuit, had violated § 8(a)(I) of the National Labor Relations Act (NLRA), which prohibits employers from restraining, coercing, or interfering with employees' exercise of rights related to self-organization, collective bargaining, and other concerted activities. 29 U. S. C. §§ 157, 158(a)(I). The Board ruled in the general counsel's favor, finding that the lawsuit was unmeritorious because its claims were dismissed or voluntarily withdrawn with prejudice, and that it was filed to retaliate against the unions, whose conduct was protected under the NLRA. It ordered petitioner to cease and desist from prosecuting such suits, to post notice to its employees acknowledging the Board's finding and promising not to pursue such litigation in the future, and to pay the unions' legal fees and expenses incurred in the lawsuit. The Sixth Circuit granted the Board's enforcement petition. Relying on Bill Johnson's Restaurants, Inc. v. NLRB, 461 U. S. 731, 747, it held that because the Judiciary had already found petitioner's claims against the unions unmeritorious or dismissed, evidence of a simple retaliatory motive sufficed to adjudge petitioner of committing an unfair labor practice. It also rejected petitioner's argument that under Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., 508 U. S. 49, only baseless or sham suits can restrict the otherwise unfettered right to seek court resolution of differences, finding that case inapplicable because its immunity standard was established in the antitrust context.517Held: The Board's standard for imposing liability is invalid. Pp. 524-537.(a) The right to petition is one of the most precious liberties safeguarded by the Bill of Rights. This Court has considered that right when interpreting federal law, recognizing in the antitrust context, for example, that genuine petitioning is immune from liability, but sham petitioning is not. The two-part definition adopted in Professional Real Estate Investors requires that sham antitrust litigation must be objectively baseless such that no reasonable litigant could realistically expect success on the merits, and that the litigant's subjective motivation must conceal an attempt to interfere directly with a competitor's business relationship through the use of the governmental process as an anticompetitive weapon. 508 U. S., at 60-61. This suit raises the same underlying issue of when litigation may be found to violate federal law, but with respect to the NLRA. Recognizing the connection, the Court has previously decided that the Board can enjoin lawsuits by analogizing to the antitrust context, holding that the Board could enjoin ongoing baseless suits brought with a retaliatory motive. Here, however, the issue is the standard for declaring completed suits unlawful. In Bill Johnson's, the Court addressed that issue in dicta, noting a standard which would allow the Board to declare that a lost or withdrawn suit violated the NLRA if it was retaliatory. However, at issue in Bill Johnson's were ongoing suits, and the Court did not consider the precise scope of the term "retaliation." Although its statements regarding completed litigation were intended to guide further proceedings, the Court did not expressly order the Board to adhere to its prior unlawfulness finding under the stated standard. Exercising its customary refusal to be bound by dicta, the Court turns to the question presented. Pp. 524-528.(b) Because of its objective component, Professional Real Estate Investors' sham litigation standard protects reasonably based petitioning from antitrust liability; because of its subjective component, it also protects petitioning that is unmotivated by anticompetitive intent, whether it is reasonably based or not. The Board argues that the broad immunity necessary in the antitrust context, with, e. g., its treble damages remedy and privately initiated lawsuits, is unnecessary in the labor law context where, e. g., most adjudication cannot be launched solely by private action and the Board cannot issue punitive remedies. At most, those arguments show that the NLRA poses less of a burden on petitioning, not that its burdens raise no First Amendment concerns. If the Board may declare that a reasonably based, but unsuccessful, retaliatory lawsuit violates the NLRA, the resulting illegality finding is a burden by itself. The finding also poses a threat of reputational harm that is518Full Text of Opinion

1992_91-1030

JUSTICE SOUTER delivered the opinion of the Court.In Stone v. Powell, 428 U. S. 465 (1976), we held that when a State has given a full and fair chance to litigate a Fourth Amendment claim, federal habeas review is not available to a state prisoner alleging that his conviction rests on evidenceDeputy Attorney General, and Mark L. Krotoski, Special Assistant Attorney General, James H. Evans, Attorney General of Alabama, Charles E. Cole, Attorney General of Alaska, Grant Woods, Attorney General of Arizona, Winston Bryant, Attorney General of Arkansas, Gale A. Norton, Attorney General of Colorado, Richard N. Palmer, Chief State's Attorney of Connecticut, Charles M. Oberly III, Attorney General of Delaware, Robert A. Butterworth, Attorney General of Florida, Michael J. Bowers, Attorney General of Georgia, Warren Price III, Attorney General of Hawaii, Larry EchoHawk, Attorney General of Idaho, Linley E. Pearson, Attorney General of Indiana, Robert T. Stephan, Attorney General of Kansas, Chris Gorman, Attorney General of Kentucky, Richard P. Ieyoub, Attorney General of Louisiana, Scott Harshbarger, Attorney General of Massachusetts, Michael C. Moore, Attorney General of Mississippi, William L. Webster, Attorney General of Missouri, Marc Racicot, Attorney General of Montana, Don Stenberg, Attorney General of Nebraska, Frankie Sue Del Papa, Attorney General of Nevada, John P. Arnold, Attorney General of New Hampshire, Robert J. Del Tufo, Attorney General of New Jersey, Tom Udall, Attorney General of New Mexico, Lacy H. Thornburg, Attorney General of North Carolina, Lee Fisher, Attorney General of Ohio, T. Travis Medlock, Attorney General of South Carolina, Mark W Barnett, Attorney General of South Dakota, Charles W Burson, Attorney General of Tennessee, R. Paul Van Dam, Attorney General of Utah, Jeffrey L. Amestoy, Attorney General of Vermont, Mary Sue Terry, Attorney General of Virginia, Kenneth O. Eikenberry, Attorney General of Washington, Mario J. Palumbo, Attorney General of West Virginia, and Joseph B. Meyer, Attorney General of Wyoming; for Americans for Effective Law Enforcement, Inc., et al. by Thomas J. Charron, Bernard J. Farber, Fred E. Inbau, Wayne W Schmidt, and James P. Manak; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger.Larry W Yackle, Steven R. Shapiro, Leslie A. Harris, and John A.Powell filed a brief for the American Civil Liberties Union et al. as amicus curiae urging affirmance.Briefs of amici curiae were filed for the American Bar Association by Talbot D'Alemberte and William J. Mertens; and for the Police Foundation et al. by Joseph D. Tydings and Michael Millemann.683obtained through an unconstitutional search or seizure. Today we hold that Stone's restriction on the exercise of federal habeas jurisdiction does not extend to a state prisoner's claim that his conviction rests on statements obtained in violation of the safeguards mandated by Miranda v. Arizona, 384 U. S. 436 (1966).IPolice officers in Romulus, Michigan, learned that respondent, Robert Allen Williams, Jr., might have information about a double murder committed on April 6, 1985. On April 10, two officers called at Williams's house and asked him to the police station for questioning. Williams agreed to go. The officers searched Williams, but did not handcuff him, and they all drove to the station in an unmarked car. One officer, Sergeant David Early, later testified that Williams was not under arrest at this time, although a contemporaneous police report indicates that the officers arrested Williams at his residence. App. 12a-13a, 24a-26a.At the station, the officers questioned Williams about his knowledge of the crime. Although he first denied any involvement, he soon began to implicate himself, and the officers continued their questioning, assuring Williams that their only concern was the identity of the "shooter." After consulting each other, the officers decided not to advise Williams of his rights under Miranda v. Arizona, supra. See App. to Pet. for Cert. 48a. When Williams persisted in denying involvement, Sergeant Early reproved him:"You know everything that went down. You just don't want to talk about it. What it's gonna amount to is you can talk about it now and give us the truth and we're gonna check it out and see if it fits or else we're simply gonna charge you and lock you up and you can just tell it to a defense attorney and let him try and prove differently." Ibid.684The reproof apparently worked, for Williams then admitted he had furnished the murder weapon to the killer, who had called Williams after the crime and told him where he had discarded the weapon and other incriminating items. Williams maintained that he had not been present at the crime scene.Only at this point, some 40 minutes after they began questioning him, did the officers advise Williams of his Miranda rights. Williams waived those rights and during subsequent questioning made several more inculpatory statements. Despite his prior denial, Williams admitted that he had driven the murderer to and from the scene of the crime, had witnessed the murders, and had helped the murderer dispose of incriminating evidence. The officers interrogated Williams again on April 11 and April 12, and, on April 12, the State formally charged him with murder.Before trial, Williams moved to suppress his responses to the interrogations, and the trial court suppressed the statements of April 11 and April 12 as the products of improper delay in arraignment under Michigan law. See App. to Pet. for Cert. 90a-91a. The court declined to suppress the statements of April 10, however, ruling that the police had given Williams a timely warning of his Miranda rights. Id., at 90a. A bench trial led to Williams's conviction on two counts each of first-degree murder and possession of a firearm during the commission of a felony and resulted in two concurrent life sentences. The Court of Appeals of Michigan affirmed the trial court's ruling on the April 10 statements, People v. Williams, 171 Mich. App. 234, 429 N. W. 2d 649 (1988), and the Supreme Court of Michigan denied leave to appeal, 432 Mich. 913, 440 N. W. 2d 416 (1989). We denied the ensuing petition for writ of certiorari. Williams v. Michigan, 493 U. S. 956 (1989).Williams then began this action pro se by petitioning for a writ of habeas corpus in the District Court, alleging a violation of his Miranda rights as the principal ground for relief.685Petition for Writ of Habeas Corpus in No. 90CV-70256, p. 5 (ED Mich.). The District Court granted relief, finding that the police had placed Williams in custody for Miranda purposes when Sergeant Early had threatened to "lock [him] up," and that the trial court should accordingly have excluded all statements Williams had made between that point and his receipt of the Miranda warnings. App. to Pet. for Cert. 49a-52a. The court also concluded, though neither Williams nor petitioner had addressed the issue, that Williams's statements after receiving the Miranda warnings were involuntary under the Due Process Clause of the Fourteenth Amendment and thus likewise subject to suppression. App. to Pet. for Cert. 52a-71a. The court found that the totality of circumstances, including repeated promises of lenient treatment if he told the truth, had overborne Williams's will. 1The Court of Appeals affirmed, 944 F.2d 284 (CA6 1991), holding the District Court correct in determining the police had subjected Williams to custodial interrogation before giving him the requisite Miranda advice, and in finding the statements made after receiving the Miranda warnings involuntary. Id., at 289-290. The Court of Appeals summarily rejected the argument that the rule in Stone v. Powell, 428 U. S. 465 (1976), should apply to bar habeas review of Williams's Miranda claim. 944 F. 2d, at 291. We granted certiorari to resolve the significant issue thus presented. 503 U. S. 983 (1992).21 The District Court mistakenly believed that the trial court had allowed the introduction of the statements Williams had made on April 12, and its ruling consequently extended to those statements as well. App. to Pet. for Cert. 72a-75a.2JU8TICE SCALIA argues in effect that the rule in Stone v. Powell, 428 U. S. 465 (1976), should extend to all claims on federal habeas review. See post, at 719-720. With respect, that reasoning goes beyond the question on which we granted certiorari, Pet. for Cert. 1 ("where the premise of [a] Fifth Amendment ruling is a finding of a Miranda violation, where the petitioner has had one full and fair opportunity to raise the Miranda claim686IIWe have made it clear that Stone's limitation on federal habeas relief was not jurisdictional in nature,3 but rested on prudential concerns counseling against the application of the Fourth Amendment exclusionary rule on collateral review. See Stone, supra, at 494-495, n. 37; see also Kuhlmann v. Wilson, 477 U. S. 436, 447 (1986) (opinion of Powell, J.) (discussing equitable principles underlying Stone); Kimmelman v. Morrison, 477 U. S. 365, 379, n. 4 (1986); Allen v. McCurry, 449 U. S. 90, 103 (1980) (Stone concerns "the prudent exercise of federal-court jurisdiction under 28 U. S. C. § 2254"); cf. 28 U. S. C. § 2243 (court entertaining habeas petition shall "dispose of the matter as law and justice require"). We simply concluded in Stone that the costs of applying the exclusionary rule on collateral review outweighed any potential advantage to be gained by applying it there. Stone, supra, at 489-495.We recognized that the exclusionary rule, held applicable to the States in Mapp v. Ohio, 367 U. S. 643 (1961), "is not a personal constitutional right"; it fails to redress "the injury to the privacy of the victim of the search or seizure" at issue, "for any '[r]eparation comes too late.'" Stone, supra, at 486 (quoting Linkletter v. Walker, 381 U. S. 618, 637 (1965)). The rule serves instead to deter future Fourth Amendment violations, and we reasoned that its application on collateral review would only marginally advance this interest in deterrence. Stone, 428 U. S., at 493. On the other side of the ledger, the costs of applying the exclusionary rule on habeasin state court, should collateral review of the same claim on a habeas corpus petition be precluded?"), and we see no good reason to address it in this case.3 Title 28 U. S. C. § 2254(a) provides: "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."687were comparatively great. We reasoned that doing so would not only exclude reliable evidence and divert attention from the central question of guilt, but would also intrude upon the public interest in "'(i) the most effective utilization of limited judicial resources, (ii) the necessity of finality in criminal trials, (iii) the minimization of friction between our federal and state systems of justice, and (iv) the maintenance of the constitutional balance upon which the doctrine of federalism is founded.'" Id., at 491, n. 31 (quoting Schneckloth v. Bustamonte, 412 U. S. 218, 259 (1973) (Powell, J., concurring)).Over the years, we have repeatedly declined to extend the rule in Stone beyond its original bounds. In Jackson v. Virginia, 443 U. S. 307 (1979), for example, we denied a request to apply Stone to bar habeas consideration of a Fourteenth Amendment due process claim of insufficient evidence to support a state conviction. We stressed that the issue was "central to the basic question of guilt or innocence," Jackson, 443 U. S., at 323, unlike a claim that a state court had received evidence in violation of the Fourth Amendment exclusionary rule, and we found that to review such a claim on habeas imposed no great burdens on the federal courts. Id., at 321-322.After a like analysis, in Rose v. Mitchell, 443 U. S. 545 (1979), we decided against extending Stone to foreclose habeas review of an equal protection claim of racial discrimination in selecting a state grand-jury foreman. A charge that state adjudication had violated the direct command of the Fourteenth Amendment implicated the integrity of the judicial process, we reasoned, Rose, 443 U. S., at 563, and failed to raise the "federalism concerns" that had driven the Court in Stone. 443 U. S., at 562. Since federal courts had granted relief to state prisoners upon proof of forbidden discrimination for nearly a century, we concluded, "confirmation that habeas corpus remains an appropriate vehicle by which federal courts are to exercise their Fourteenth Amendment688responsibilities" would not likely raise tensions between the state and federal judicial systems. Ibid.In a third instance, in Kimmelman v. Morrison, supra, we again declined to extend Stone, in that case to bar habeas review of certain claims of ineffective assistance of counsel under the Sixth Amendment. We explained that unlike the Fourth Amendment, which confers no "trial right," the Sixth confers a "fundamental right" on criminal defendants, one that "assures the fairness, and thus the legitimacy, of our adversary process." 477 U. S., at 374. We observed that because a violation of the right would often go unremedied except on collateral review, "restricting the litigation of some Sixth Amendment claims to trial and direct review would seriously interfere with an accused's right to effective representation." Id., at 378.In this case, the argument for extending Stone again falls short.4 To understand why, a brief review of the derivation of the Miranda safeguards, and the purposes they were designed to serve, is in order.The Self-Incrimination Clause of the Fifth Amendment guarantees that no person "shall be compelled in any criminal case to be a witness against himself." U. S. Const., Arndt. 5. In Bram v. United States, 168 U. S. 532 (1897), the Court held that the Clause barred the introduction in federal cases of involuntary confessions made in response to custodial interrogation. We did not recognize the Clause's applicability to state cases until 1964, however, see Malloy v. Hogan, 378 U. S. 1; and, over the course of 30 years, beginning with the decision in Brown v. Mississippi, 297 U. S. 278 (1936), we analyzed the admissibility of confessions in such cases as a question of due process under the Fourteenth Amendment. See Stone, The Miranda Doctrine in the Burger Court, 1977 S. Ct. Rev. 99, 101-102. Under this ap-4 We have in the past declined to address the application of Stone in this context. See, e. g., Duckworth v. Eagan, 492 U. S. 195, 201, n. 3 (1989); Wainwright v. Sykes, 433 U. S. 72, 87, n. 11 (1977).689proach, we examined the totality of circumstances to determine whether a confession had been "'made freely, voluntarily and without compulsion or inducement of any sort.'" Haynes v. Washington, 373 U. S. 503, 513 (1963) (quoting Wilson v. United States, 162 U. S. 613, 623 (1896)); see also Schneckloth v. Bustamonte, supra, at 223-227 (discussing totality-of-circumstances approach). See generally 1 W. LaFave & J. Israel, Criminal Procedure § 6.2 (1984). Indeed, we continue to employ the totality-of-circumstances approach when addressing a claim that the introduction of an involuntary confession has violated due process. E. g., Arizona v. Fulminante, 499 U. S. 279 (1991); Miller v. Fenton, 474 U. S. 104, 109-110 (1985).In Malloy, we recognized that the Fourteenth Amendment incorporates the Fifth Amendment privilege against selfincrimination, and thereby opened Bram's doctrinal avenue for the analysis of state cases. So it was that two years later we held in Miranda that the privilege extended to state custodial interrogations. In Miranda, we spoke of the privilege as guaranteeing a person under interrogation "the right 'to remain silent unless he chooses to speak in the unfettered exercise of his own will,'" 384 U. S., at 460 (quoting Malloy, supra, at 8), and held that "without proper safeguards the process of in-custody interrogation ... contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely." 384 U. S., at 467. To counter these pressures we prescribed, absent "other fully effective means," the now-familiar measures in aid of a defendant's Fifth Amendment privilege:"He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity690to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement." Id., at 479.Unless the prosecution can demonstrate the warnings and waiver as threshold matters, we held, it may not overcome an objection to the use at trial of statements obtained from the person in any ensuing custodial interrogation. See ibid.; cf. Oregon v. Hass, 420 U. S. 714, 721-723 (1975) (permitting use for impeachment purposes of statements taken in violation of Miranda).Petitioner, supported by the United States as amicus curiae, argues that Miranda's safeguards are not constitutional in character, but merely "prophylactic," and that in consequence habeas review should not extend to a claim that a state conviction rests on statements obtained in the absence of those safeguards. Brief for Petitioner 91-93; Brief for United States as Amicus Curiae 14-15. We accept petitioner's premise for purposes of this case, but not her conclusion.The Miranda Court did of course caution that the Constitution requires no "particular solution for the inherent compulsions of the interrogation process," and left it open to a State to meet its burden by adopting "other procedures ... at least as effective in apprising accused persons" of their rights. 384 U. S., at 467. The Court indeed acknowledged that, in barring introduction of a statement obtained without the required warnings, Miranda might exclude a confession that we would not condemn as "involuntary in traditional terms," id., at 457, and for this reason we have sometimes called the Miranda safeguards "prophylactic" in nature. E. g., Duckworth v. Eagan, 492 U. S. 195, 203 (1989); Connecticut v. Barrett, 479 U. S. 523, 528 (1987); Oregon v. Elstad, 470 U. S. 298, 305 (1985); New York v. Quarles, 467 U. S. 649, 654 (1984); see Michigan v. Tucker, 417 U. S. 433, 444 (1974)691(Miranda Court "recognized that these procedural safeguards were not themselves rights protected by the Constitution but were instead measures to insure that the right against compulsory self-incrimination was protected"). But cf. Quarles, supra, at 660 (opinion of O'CONNOR, J.) (Miranda Court "held unconstitutional, because inherently compelled, the admission of statements derived from in-custody questioning not preceded by an explanation of the privilege against self-incrimination and the consequences of forgoing it"). Calling the Miranda safeguards "prophylactic," however, is a far cry from putting Miranda on all fours with Mapp, or from rendering Miranda subject to Stone.As we explained in Stone, the Mapp rule "is not a personal constitutional right," but serves to deter future constitutional violations; although it mitigates the juridical consequences of invading the defendant's privacy, the exclusion of evidence at trial can do nothing to remedy the completed and wholly extrajudicial Fourth Amendment violation. Stone, 428 U. S., at 486. Nor can the Mapp rule be thought to enhance the soundness of the criminal process by improving the reliability of evidence introduced at trial. Quite the contrary, as we explained in Stone, the evidence excluded under Mapp "is typically reliable and often the most probative information bearing on the guilt or innocence of the defendant." 428 U. S., at 490.Miranda differs from Mapp in both respects. "Prophylactic" though it may be, in protecting a defendant's Fifth Amendment privilege against self-incrimination, Miranda safeguards "a fundamental trial right." United States v. Verdugo-Urquidez, 494 U. S. 259, 264 (1990) (emphasis added); cf. Kimmelman, 477 U. S., at 377 (Stone does not bar habeas review of claim that the personal trial right to effective assistance of counsel has been violated). The privilege embodies "principles of humanity and civil liberty, which had been secured in the mother country only after years of struggle," Bram, 168 U. S., at 544, and reflects692"many of our fundamental values and most noble aspirations: ... our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates 'a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load;' our respect for the inviolability of the human personality and of the right of each individual 'to a private enclave where he may lead a private life;' our distrust of self-deprecatory statements; and our realization that the privilege, while sometimes 'a shelter to the guilty,' is often 'a protection to the innocent.'" Murphy v. Waterfront Comm'n of New York Harbor, 378 U. S. 52, 55 (1964) (citations omitted).Nor does the Fifth Amendment "trial right" protected by Miranda serve some value necessarily divorced from the correct ascertainment of guilt. "'[A] system of criminal law enforcement which comes to depend on the "confession" will, in the long run, be less reliable and more subject to abuses' than a system relying on independent investigation." Michigan v. Tucker, supra, at 448, n. 23 (quoting Escobedo v. Illinois, 378 U. S. 478, 488-489 (1964)). By bracing against "the possibility of unreliable statements in every instance of incustody interrogation," Miranda serves to guard against "the use of unreliable statements at trial." Johnson v. New Jersey, 384 U. S. 719, 730 (1966); see also Schneckloth, 412 U. S., at 240 (Miranda "Court made it clear that the basis for decision was the need to protect the fairness of the trial itself"); Halpern, Federal Habeas Corpus and the Mapp Exclusionary Rule after Stone v. Powell, 82 Colum. L. Rev. 1, 40 (1982); cf. Rose v. Mitchell, 443 U. S. 545 (1979) (Stone does not bar habeas review of claim of racial discrimination693in selection of grand-jury foreman, as this claim goes to the integrity of the judicial process).Finally, and most importantly, eliminating review of Miranda claims would not significantly benefit the federal courts in their exercise of habeas jurisdiction, or advance the cause of federalism in any substantial way. As one amicus concedes, eliminating habeas review of Miranda issues would not prevent a state prisoner from simply converting his barred Miranda claim into a due process claim that his conviction rested on an involuntary confession. See Brief for United States as Amicus Curiae 17. Indeed, although counsel could provide us with no empirical basis for projecting the consequence of adopting petitioner's position, see Tr. of Oral Arg. 9-11, 19-21, it seems reasonable to suppose that virtually all Miranda claims would simply be recast in this way.5If that is so, the federal courts would certainly not have heard the last of Miranda on collateral review. Under the due process approach, as we have already seen, courts look to the totality of circumstances to determine whether a confession was voluntary. Those potential circumstances include not only the crucial element of police coercion, Colorado v. Connelly, 479 U. S. 157, 167 (1986); the length of the interrogation, Ashcraft v. Tennessee, 322 U. S. 143, 153-154 (1944); its location, see Reck v. Pate, 367 U. S. 433, 441 (1961); its continuity, Leyra v. Denno, 347 U. S. 556, 561 (1954); the defendant's maturity, Haley v. Ohio, 332 U. S. 596, 599-601 (1948) (opinion of Douglas, J.); education, Clewis v. Texas, 386 U. S. 707, 712 (1967); physical condition, Greenwald v. Wisconsin, 390 U. S. 519, 520-521 (1968) (per curiam); and mental health, Fikes v. Alabama, 352 U. S. 191, 196 (1957). They also include the failure of police to advise the defendant of his rights to remain silent and to have counsel present5JU8TICE O'CONNOR is confident that many such claims would be unjustified, see post, at 708-709, but that is beside the point. Justifiability is not much of a gatekeeper on habeas.694during custodial interrogation. Haynes v. Washington, 373 U. S. 503, 516-517 (1963); Brief for United States as Amicus Curiae 19, n. 17; see also Schneckloth, supra, at 226 (discussing factors). We could lock the front door against Miranda, but not the back.We thus fail to see how abdicating Miranda's bright-line (or, at least, brighter-line) rules in favor of an exhaustive totality-of-circumstances approach on habeas would do much of anything to lighten the burdens placed on busy federal courts. See P. Bator, D. Meltzer, P. Mishkin, & D. Shapiro, Hart and Wechsler's The Federal Courts and the Federal System 188 (3d ed. 1988, Supp. 1992); Halpern, supra, at 40; Schulhofer, Confessions and the Court, 79 Mich. L. Rev. 865, 891 (1981); see also Quarles, 467 U. S., at 664 (O'CONNOR, J., concurring in judgment in part and dissenting in part) (quoting Fare v. Michael c., 439 U. S. 1310, 1314 (1978) (REHNQUIST, J., in chambers)) (Miranda's" 'core virtue'" was" 'afford[ing] police and courts clear guidance on the manner in which to conduct a custodial investigation' "). We likewise fail to see how purporting to eliminate Miranda issues from federal habeas would go very far to relieve such tensions as Miranda may now raise between the two judicial systems. Relegation of habeas petitioners to straight involuntariness claims would not likely reduce the amount of litigation, and each such claim would in any event present a legal question requiring an "independent federal determination" on habeas. Miller v. Fenton, 474 U. S., at 112.One might argue that tension results between the two judicial systems whenever a federal habeas court overturns a state conviction on finding that the state court let in a voluntary confession obtained by the police without the Miranda safeguards. And one would have to concede that this has occurred in the past, and doubtless will occur again. I t is not reasonable, however, to expect such occurrences to be frequent enough to amount to a substantial cost of reviewing695Miranda claims on habeas or to raise federal-state tensions to an appreciable degree. See Tr. of Oral Arg. 11, 21. We must remember in this regard that Miranda came down some 27 years ago. In that time, law enforcement has grown in constitutional as well as technological sophistication, and there is little reason to believe that the police today are unable, or even generally unwilling, to satisfy Miranda's requirements. See Quarles, supra, at 663 (O'CONNOR, J., concurring in judgment in part and dissenting in part) (quoting Rhode Island v. Innis, 446 U. S. 291, 304 (1980) (Burger, C. J., concurring in judgment)) (" 'meaning of Miranda has become reasonably clear and law enforcement practices have adjusted to its strictures' "); Schulhofer, Reconsidering Miranda, 54 U. Chi. L. Rev. 435, 455-457 (1987).6 And if, finally, one should question the need for federal collateral review of requirements that merit such respect, the answer simply is that the respect is sustained in no small part by the existence of such review. "It is the occasional abuse that the federal writ of habeas corpus stands ready to correct." Jackson, 443 U. S., at 322.IIIOne final point should keep us only briefly. As he had done in his state appellate briefs, on habeas Williams raised only one claim going to the admissibility of his statements to the police: that the police had elicited those statements without satisfying the Miranda requirements. See supra, at 684. In her answer, petitioner addressed only that claim. See Brief in Support of Answer in No. 90CV-70256 DT, p. 3 (ED Mich.). The District Court, nonetheless, without an evidentiary hearing or even argument, went beyond the habeas petition and found the statements Williams made after re-6 It should indeed come as no surprise that one of the submissions arguing against the extension of Stone in this case comes to us from law enforcement organizations. See Brief for Police Foundation et al. as Amici Curiae.696ceiving the Miranda warnings to be involuntary under due process criteria. Before the Court of Appeals, petitioner objected to the District Court's due process enquiry on the ground that the habeas petition's reference to Miranda rights had given her insufficient notice to address a due process claim. Brief for Respondent-Appellant in No. 90-2289, p. 6 (CA6). Petitioner pursues the objection here. See Pet. for Cert. 1; Brief for Petitioner 14-15, n. 2.Williams effectively concedes that his habeas petition raised no involuntariness claim, but he argues that the matter was tried by the implied consent of the parties under Federal Rule of Civil Procedure 15(b),7 and that petitioner can demonstrate no prejudice from the District Court's action. See Brief for Respondent 41-42, n. 22. The record, however, reveals neither thought, word, nor deed of petitioner that could be taken as any sort of consent to the determination of an independent due process claim, and petitioner was manifestly prejudiced by the District Court's failure to afford her an opportunity to present evidence bearing on that claim's resolution. The District Court should not have addressed the involuntariness question in these circumstances.87The relevant part of Rule 15(b) provides: ''When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues." See 28 U. S. C. § 2254 Rule 11 (application of Federal Rules of Civil Procedure to habeas petitions); 1 J. Liebman, Federal Habeas Corpus Practice and Procedure § 17.2 (1988) (Rule 15 applies in habeas actions).8We need not address petitioner's arguments that Williams failed to exhaust the involuntariness claim in the state courts and that the District Court applied a new rule under Teague v. Lane, 489 U. S. 288 (1989). Of course, we also express no opinion on the merits of the involuntariness claim.697IVThe 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

OCTOBER TERM, 1992SyllabusWITHROW v. WILLIAMSCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUITNo. 91-1030. Argued November 3, 1992-Decided April 21, 1993After a police sergeant threatened to "lock [him] up" during a station house interrogation about a double murder, respondent Williams made inculpatory statements. He was then advised of his rights under Miranda v. Arizona, 384 U. S. 436, waived those rights, and made more inculpatory statements. The Michigan trial court declined to suppress his statements on the ground that he had been given timely Miranda warnings, and he was convicted of first-degree murder and related crimes. Williams subsequently commenced this habeas action pro se, alleging a Miranda violation as his principal ground for relief. The District Court granted relief, finding that all statements made between the sergeant's incarceration threat and Williams' receipt of Miranda warnings should have been suppressed. Without conducting an evidentiary hearing or entertaining argument, the court also ruled that the statements Williams made after receiving the Miranda warnings should have been suppressed as involuntary under the Due Process Clause of the Fourteenth Amendment. The Court of Appeals agreed on both points and affirmed, summarily rejecting the argument that the rule in Stone v. Powell, 428 U. S. 465-that when a State has given a full and fair chance to litigate a Fourth Amendment claim, federal habeas review is not available to a state prisoner alleging that his conviction rests on evidence obtained through an unconstitutional search or seizure-should apply to bar habeas review of Williams' Miranda claim.Held:1. Stone's restriction on the exercise of federal habeas jurisdiction does not extend to a state prisoner's claim that his conviction rests on statements obtained in violation of the Miranda safeguards. The Stone rule was not jurisdictional in nature, but was based on prudential concerns counseling against applying the Fourth Amendment exclusionary rule of Mapp v. Ohio, 367 U. S. 643, on collateral review. Miranda differs from Mapp with respect to such concerns, and Stone consequently does not apply. In contrast to Mapp, Miranda safeguards a fundamental trial right by protecting a defendant's Fifth Amendment privilege against self-incrimination. Moreover, Miranda facilitates the correct ascertainment of guilt by guarding against the use of unreliable statements at trial. Finally, and most importantly, eliminating review of681Miranda claims would not significantly benefit the federal courts in their exercise of habeas jurisdiction, or advance the cause of federalism in any substantial way. The burdens placed on busy federal courts would not be lightened, since it is reasonable to suppose that virtually every barred Miranda claim would simply be recast as a due process claim that the particular conviction rested on an involuntary confession. Furthermore, it is not reasonable to expect that, after 27 years of Miranda, the overturning of state convictions on the basis of that case will occur frequently enough to be a substantial cost of review or to raise federal-state tensions to an appreciable degree. Pp. 686-695.2. The District Court erred in considering the involuntariness of the statements Williams made after receiving the Miranda warnings. The habeas petition raised no independent due process claim, and the record is devoid of any indication that petitioner consented under Federal Rule of Civil Procedure 15(b) to the determination of such a claim. Moreover, petitioner was manifestly prejudiced by the court's failure to afford her an opportunity to present evidence bearing on that claim's resolution. pp. 695-696.944 F.2d 284, affirmed in part, reversed in part, and remanded.SOUTER, J., delivered the opinion for a unanimous Court with respect to Part III, and the opinion of the Court with respect to Parts I, II, and IV, in which WHITE, BLACKMUN, STEVENS, and KENNEDY, JJ., joined. O'CONNOR, J., filed an opinion concurring in part and dissenting in part, in which REHNQUIST, C. J., joined, post, p. 697. SCALIA, J., filed an opinion concurring in part and dissenting in part, in which THOMAS, J., joined, post, p.715.Jeffrey Caminsky argued the cause for petitioner. With him on the briefs were John D. O'Hair and Timothy A. Baughman.Deputy Solicitor General Roberts 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, and Ronald J. Mann.Seth P. Waxman, by appointment of the Court, 504 U. S. 983, argued the cause for respondent. With him on the brief were Scott L. Nelson and Daniel P. O'Neil. **Briefs of amici curiae urging reversal were filed for the State of California et al. by Daniel E. Lungren, Attorney General of California, George Williamson, Chief Assistant Attorney General, Donald E. De Nicola,682Full Text of Opinion

1982_81-525

JUSTICE POWELL delivered the opinion of the Court.The issue is whether a union may be held primarily liable for that part of a wrongfully discharged employee's damages caused by his union's breach of its duty of fair representation.IOn February 21, 1976, following an altercation with another employee, petitioner Charles V. Bowen was suspended without pay from his position with the United States Postal Service. Bowen was a member of the American Postal Workers Union, AFL-CIO, the recognized collective bargaining agent for Service employees. After Bowen was formally terminated on March 30, 1976, he filed a grievance with the Union as provided by the collective bargaining agreement. When the Union declined to take his grievance to arbitration, he sued the Service and the Union in the United States District Court for the Western District of Virginia, seeking damages and injunctive relief.Bowen's complaint charged that the Service had violated the collective bargaining agreement by dismissing him without "just cause," and that the Union had breached its duty of fair representation. His evidence at trial indicated that the responsible Union officer, at each step of the grievance process, had recommended pursuing the grievance, but that the national office, for no apparent reason, had refused to take the matter to arbitration.Following the parties' presentation of evidence, the court gave the jury a series of questions to be answered as a special verdict. [Footnote 1] If the jury found that the Service had discharged Page 459 U. S. 215 Bowen wrongfully and that the Union had breached its duty of fair representation, it was instructed to determine the amount of compensatory damages to be awarded and to apportion the liability for the damages between the Service and the Union. [Footnote 2] In explaining how liability might be apportioned, the court instructed the jury that the issue was left primarily to its discretion. The court indicated, however, that the jury equitably could base apportionment on the date of a hypothetical arbitration decision -- the date at which the Service would have reinstated Bowen if the Union had fulfilled its duty. The court suggested that the Service could be liable for damages before that date and the Union for damages thereafter. Although the Union objected to the instruction allowing the jury to find it liable for any compensatory damages, it did not object to the manner in which the court instructed the jury to apportion the damages in the event apportionment was proper. [Footnote 3]Upon return of a special verdict in favor of Bowen and against both defendants, the District Court entered judgment, Page 459 U. S. 216 holding that the Service had discharged Bowen without just cause and that the Union had handled his "apparently meritorious grievance . . . in an arbitrary and perfunctory manner. . . ." 470 F. Supp. 1127, 1129 (1979). In so doing, both the Union and the Service acted "in reckless and callous disregard of [Bowen's] rights." [Footnote 4] Ibid. The court found that Bowen could not have proceeded independently of the Union [Footnote 5] and that, if the Union had arbitrated Bowen's grievance, he would have been reinstated. Ibid.The court ordered that Bowen be reimbursed $52,954 for lost benefits and wages. Although noting that "there is authority suggesting that only the employer is liable for damages Page 459 U. S. 217 in the form of backpay," it observed that"this is a case in which both defendants, by their illegal acts, are liable to plaintiff. . . . The problem in this case is not one of liability, but rather one of apportionment. . . ."Id. at 1130-1131. The jury had found that the Union was responsible for $30,000 of Bowen's damages. The court approved that apportionment, ordering the Service to pay the remaining $22,954. [Footnote 6]On appeal by the Service and the Union, the Court of Appeals for the Fourth Circuit overturned the damages award against the Union. 642 F.2d 79 (1981). It accepted the District Court's findings of fact, but held as a matter of law that,"[a]s Bowen's compensation was at all times payable only by the Service, reimbursement of his lost earnings continued to be the obligation of the Service exclusively. Hence, no portion of the deprivations . . . was chargeable to the Union. Cf. Vaca v. Sipes, 386 U. S. 171, 386 U. S. 195 . . . (1967)."Id. at 82 (footnote omitted). The court did not alter the District Court's judgment in any other respect, but "affirmed [it] throughout" except for the award of damages against the Union. Id. at 83.Thus, the Court of Appeals affirmed the District Court's apportionment of fault and its finding that both the Union and the Service had acted "in reckless and callous disregard of [Bowen's] rights." [Footnote 7] Indeed, the court accepted the District Page 459 U. S. 218 Court's apportionment of fault so completely that it refused to increase the $22,954 award against the Service to cover the whole of Bowen's injury. Bowen was left with only a $22,954 award, whereas the jury and the District Court had awarded him lost earnings and benefits of $52,954 -- the undisputed amount of his damages.IIIn Vaca v. Sipes, 386 U. S. 171 (1967), the Court held that an employee such as Bowen, who proves that his employer violated the labor agreement and his union breached its duty of fair representation, may be entitled to recover damages from both the union and the employer. The Court explained that the award must be apportioned according to fault:"The governing principle, then, is to apportion liability between the employer and the union according to the damage caused by the fault of each. Thus, damages attributable solely to the employer's breach of contract should not be charged to the union, but increases if any in those damages caused by the union's refusal to process the grievance should not be charged to the employer."Id. at 386 U. S. 197-198.Although Vaca's governing principle is well established, its application has caused some uncertainty. [Footnote 8] The Union argues Page 459 U. S. 219 that the Court of Appeals correctly determined that it cannot be charged with any damages resulting from a wrongful discharge. Vaca's "governing principle," according to Page 459 U. S. 220 the Union, requires that the employer be solely liable for such damages. The Union views itself as liable only for Bowen's litigation expenses resulting from its breach of duty. It finds support for this view in Vaca's recognition that a union's breach of its duty of fair representation does not absolve an employer of all the consequences of a breach of the collective bargaining contract. See id. at 196. The Union contends that its unrelated breach of the duty of fair representation does not make it liable for any part of the discharged employee's damages; its default merely lifts the bar to the employee's suit on the contract against his employer.The difficulty with this argument is that it treats the relationship between the employer and employee, created by the collective bargaining agreement, as if it were a simple contract of hire governed by traditional common law principles. This reading of Vaca fails to recognize that a collective bargaining agreement is much more than traditional common law employment terminable at will. Rather, it is an agreement creating relationships and interests under the federal common law of labor policy.AIn Vaca, as here, the employee contended that his employer had discharged him in violation of the collective bargaining agreement and that the union had breached its duty of fair representation by refusing to take his claim to arbitration. He sued the union in a Missouri state court for breach of its duty. On finding that both the union and the employer Page 459 U. S. 221 were at fault, the jury decided -- and the Missouri Supreme Court agreed -- that the union was entirely liable for the employee's lost backpay. See id. at 195.On appeal, this Court was required to resolve a number of issues. One was whether an employee who had failed to exhaust the grievance procedure prescribed in the bargaining agreement could bring suit for a breach of that agreement. [Footnote 9] In Republic Steel Corp. v. Maddox, 379 U. S. 650 (1965), the Court had held that"federal labor policy requires that individual employees wishing to assert contract grievances must attempt use of the contract grievance procedure agreed upon by employer and union as the mode of redress. [Footnote 10]"Id. at 379 U. S. 652 (emphasis in original; footnote omitted). Because the employee in Republic Steel had made no attempt to exhaust the grievance procedure, it was necessary for the Court to consider only the union's interest in participating in the administration of the contract and the employer's interest in limiting administrative remedies. The Court noted, however, that, if "the union refuses to press or only perfunctorily presses the individual's claim," federal labor policy might require a different result. Ibid.Vaca presented such a situation. The union, which had the "sole power under the contract to invoke the higher stages of the grievance procedure," had chosen not to take the employee's claim to arbitration. See 386 U.S. at 386 U. S. 185. Thus, the Court faced a strong countervailing interest: the Page 459 U. S. 222 employee's right to vindicate his claim. Vaca resolved these conflicting interests by holding that an employee's failure to exhaust the contractual grievance procedures would bar his suit except when he could show that the union's breach of its duty of fair representation had prevented him from exhausting those remedies. See ibid. The Vaca Court then observed:"It is true that the employer in such a situation may have done nothing to prevent exhaustion of the exclusive contractual remedies to which he agreed in the collective bargaining agreement. But the employer has committed a wrongful discharge in breach of that agreement, a breach which could be remedied through the grievance process to the employee-plaintiff's benefit were it not for the union's breach of its statutory duty of fair representation to the employee. To leave the employee remediless in such circumstances would, in our opinion, be a great injustice."Id. at 386 U. S. 185-186.The interests thus identified in Vaca provide a measure of its principle for apportioning damages. Of paramount importance is the right of the employee, who has been injured by both the employer's and the union's breach, to be made whole. In determining the degree to which the employer or the union should bear the employee's damages, the Court held that the employer should not be shielded from the "natural consequences" of its breach by wrongful union conduct. Id. at 386 U. S. 186. The Court noted, however, that the employer may have done nothing to prevent exhaustion. Were it not for the union's failure to represent the employee fairly, the employer's breach "could [have been] remedied through the grievance process to the employee-plaintiff's benefit." The fault that justifies dropping the bar to the employee's suit for damages also requires the union to bear some responsibility for increases in the employee's damages resulting from its breach. To hold otherwise would make the employer alone liable for the consequences of the union's breach of duty. Page 459 U. S. 223Hines v. Anchor Motor Freight, Inc., 424 U. S. 554 (1976), presented an issue analogous to that in Vaca: whether proof of a breach of the duty of fair representation would remove the bar of finality from an arbitral decision. We held that it would, in part because a contrary rule would prevent the employee from recovering"even in circumstances where it is shown that a union has manufactured the evidence and knows from the start that it is false; or even if, unbeknownst to the employer, the union has corrupted the arbitrator to the detriment of disfavored union members."424 U.S. at 424 U. S. 570.It would indeed be unjust to prevent the employee from recovering in such a situation. It would be equally unjust to require the employer to bear the increase in the damages caused by the union's wrongful conduct. [Footnote 11] It is true that the employer discharged the employee wrongfully and remains liable for the employee's backpay. See Vaca, 386 U.S. at 386 U. S. 197. The union's breach of its duty of fair representation, however, caused the grievance procedure to malfunction, resulting in an increase in the employee's damages. Even though both the employer and the union have caused the damage suffered by the employee, the union is responsible for the increase in damages and, as between the two wrongdoers, should bear its portion of the damages. [Footnote 12]Vaca's governing principle reflects this allocation of responsibility. As the Court stated,"damages attributable solely to the employer's breach of contract should not be charged to the union, but increases, if any, in those damages Page 459 U. S. 224 caused by the union's refusal to process the grievance should not be charged to the employer."Id. at 386 U. S. 197-198 (emphasis added). The Union's position here would require us to read out of the Vaca articulation of the relevant principle the words emphasized above. [Footnote 13] It would also ignore the interests of all the parties to the collective agreement -- interests that Vaca recognized and Hines illustrates.BIn approving apportionment of damages caused by the employer's breach of the collective bargaining agreement and the union's breach of its duty of fair representation, Vaca did not apply principles of ordinary contract law. For, as the Court has noted, a collective bargaining agreement "is more than a contract; it is a generalized code to govern a myriad of cases which the draftsmen cannot wholly anticipate." Steelworkers v. Warrior & Gulf Navigation Co., 363 U. S. 574, 363 U. S. 578 (1960). In defining the relationships created by such an Page 459 U. S. 225 agreement, the Court has applied an evolving federal common law grounded in national labor policy. See Steelworkers v. American Manufacturing Co., 363 U. S. 564, 363 U. S. 567 (1960); Textile Workers v. Lincoln Mills, 353 U. S. 448, 353 U. S. 456-457 (1957).Fundamental to federal labor policy is the grievance procedure. See John Wiley & Sons, Inc. v. Livingston, 376 U. S. 543, 376 U. S. 549 (1964); Warrior & Gulf Navigation Co., supra, at 363 U. S. 578. It promotes the goal of industrial peace by providing a means for labor and management to settle disputes through negotiation, rather than industrial strife. See John Wiley & Sons, Inc., supra, at 376 U. S. 549. Adoption of a grievance procedure provides the parties with a means of giving content to the collective bargaining agreement and determining their rights and obligations under it. See Warrior & Gulf Navigation Co., supra, at 363 U. S. 581.Although each party participates in the grievance procedure, the union plays a pivotal role in the process, since it assumes the responsibility of determining whether to press an employee's claims. [Footnote 14] The employer, for its part, must rely on the union's decision not to pursue an employee's grievance. For the union acts as the employee's exclusive representative in the grievance procedure, as it does in virtually all matters Page 459 U. S. 226 involving the terms and conditions of employment. Just as a nonorganized employer may accept an employee's waiver of any challenge to his discharge as a final resolution of the matter, so should an organized employer be able to rely on a comparable waiver by the employee's exclusive representative.There is no unfairness to the union in this approach. By seeking and acquiring the exclusive right and power to speak for a group of employees, the union assumes a corresponding duty to discharge that responsibility faithfully -- a duty which it owes to the employees whom it represents and on which the employer with whom it bargains may rely. When the union, as the exclusive agent of the employee, waives arbitration or fails to seek review of an adverse decision, the employer should be in substantially the same position as if the employee had had the right to act on his own behalf and had done so. Indeed, if the employer could not rely on the union's decision, the grievance procedure would not provide the "uniform and exclusive method for [the] orderly settlement of employee grievances," which the Court has recognized is essential to the national labor policy. [Footnote 15] See Clayton v. Automobile Workers, 451 U. S. 679, 451 U. S. 686-687 (1981). Page 459 U. S. 227The principle announced in Vaca reflects this allocation of responsibilities in the grievance procedure -- a procedure that contemplates that both employer and union will perform their respective obligations. In the absence of damages apportionment where the default of both parties contributes to the employee's injury, incentives to comply with the grievance procedure will be diminished. Indeed, imposing total liability solely on the employer could well affect the willingness of employers to agree to arbitration clauses as they are customarily written.Nor will requiring the union to pay damages impose a burden on the union inconsistent with national labor policy. [Footnote 16] It will provide an additional incentive for the union to process its members' claims where warranted. See Vaca, 386 U.S. at 386 U. S. 187. This is wholly consistent with a union's interest. It is a duty owed to its members as well as consistent with the Page 459 U. S. 228 union's commitment to the employer under the arbitration clause. See Republic Steel, 379 U.S. at 379 U. S. 653.IIIThe Union contends that Czosek v. O'Mara, 397 U. S. 25 (1970), requires a different reading of Vaca and a different weighing of the interests our cases have developed. Czosek, however, is consistent with our holding today. [Footnote 17] In Czosek, employees of the Erie Lackawanna Railroad were placed on furlough and not recalled. They brought suit against the railroad for wrongful discharge and against their union for breaching its duty of fair representation. They alleged that the union had arbitrarily and capriciously refused to process their claims against the railroad. See 397 U.S. at 397 U. S. 26. The District Court dismissed the claim against the railroad because the employees had not pursued the administrative remedies Page 459 U. S. 229 provided by the Railway Labor Act. [Footnote 18] It dismissed the claim against the union because the employees' ability to pursue an administrative remedy on their own absolved the union of any duty. The Court of Appeals for the Second Circuit affirmed the dismissal of the claim against the railroad, but found that the employees had stated a claim against the union. Even though the employees had a right to seek full redress from an administrative board, the union still had a duty to represent them fairly. See Conley v. Gibson, 355 U. S. 41 (1957).This Court affirmed. In so doing, it addressed the union's concern that, if the railroad were not joined as a party, the union might be held responsible for damages for which the railroad was wholly or partly responsible. The Court stated:"[J]udgment against [the union] can in any event be had only for those damages that flowed from [its] own conduct. Assuming a wrongful discharge by the employer independent of any discriminatory conduct by the union and a subsequent discriminatory refusal by the union to process grievances based on the discharge, damages against the union for loss of employment are unrecoverable except to the extent that its refusal to handle the grievances added to the difficulty and expense of collecting from the employer."397 U.S. at 397 U. S. 29 (footnote omitted).Although the statement is broadly phrased, it should not be divorced from the context in which it arose. The Railway Labor Act provided the employees in Czosek with an alternative remedy, which they could have pursued when the union refused to process their grievances. Because the union's actions did not deprive the employees of immediate access to a Page 459 U. S. 230 remedy, it did not increase the damages that the employer otherwise would have had to pay. The Court therefore stated that the only damages flowing from the union's conduct were the added expenses the employees incurred. This is consistent with Vaca's recognition that each party should bear the damages attributable to its fault.IVIn this case, the findings of the District Court, accepted by the Court of Appeals, establish that the damages sustained by petitioner were caused initially by the Service's unlawful discharge, and increased by the Union's breach of its duty of fair representation. Accordingly, apportionment of the damages was required by Vaca. [Footnote 19] We reverse the judgment of the Court of Appeals and remand for entry of judgment allocating damages against both the Service and the Union consistent with this opinion.It is so ordered

U.S. Supreme CourtBowen v. USPS, 459 U.S. 212 (1983)Bowen v. United States Postal ServiceNo. 81-525Argued October 6, 1982Decided January 11, 1983459 U.S. 212SyllabusAfter petitioner employee was discharged by respondent United States Postal Service (USPS) as a result of an altercation with another employee, he filed a grievance with respondent Union as provided by the applicable collective bargaining agreement. When the Union declined to take his grievance to arbitration, petitioner sued respondents in Federal District Court, claiming that he had been wrongfully discharged and seeking damages and injunctive relief. Entering judgment on a jury verdict against both respondents, the District Court held that the USPS had discharged petitioner without just cause, and that the Union had handled his grievance in an arbitrary manner. Accordingly, the court upheld the jury's apportionment of damages between the USPS and the Union. The Court of Appeals affirmed except for the award of damages against the Union, holding that, because petitioner's compensation was payable only by the USPS, reimbursement for his lost earnings continued to be the USPS's exclusive obligation, and that hence no portion of the deprivations was chargeable to the Union.Held: Where the District Court's findings, accepted by the Court of Appeals, established that petitioner's damages were caused initially by the USPS's unlawful discharge and were increased by the Union's breach of its duty of fair representation, apportionment of the damages was required. Vaca v. Sipes, 386 U. S. 171. Pp. 459 U. S. 218-230.(a) The governing principle of Vaca is that, where an employee proves that his employer violated the collective bargaining agreement and that his union breached its duty of fair representation, liability is to be apportioned between the employer and the union according to the damages caused by the fault of each. To interpret this principle as requiring that an employer be solely liable for damages resulting from a wrongful discharge treats the relationship between the employer and employee, created by the collective bargaining agreement, as if it were a simple contract of hire governed by traditional common law principles. Such a reading fails to recognize that a collective bargaining agreement is much more than traditional common law employment terminable at will. Rather, it is an agreement creating relationships and interests under the federal common law of labor policy. Pp. 459 U. S. 218-220. Page 459 U. S. 213(b) Of paramount importance is the right of the employee, who has been injured by both the employer's and the union's breach, to be made whole. Even though both the employer and the union have caused the damage suffered by the employee, the union is responsible for the increase in damages resulting from breach of its duty of fair representation having caused the grievance procedure to malfunction, and, as between the two wrongdoers, the union should bear its portion of the damages. Pp. 459 U. S. 220-224.(c) When the union, as the employee's exclusive agent, waives arbitration or fails to seek review of an adverse decision, the employer should be in substantially the same position as if the employee had had the right to act on his own behalf and had done so. In the absence of damages apportionment where the default of both the employer and the union contributes to the employee's injury, incentives to comply with the grievance proceeding would be diminished, and to impose total liability solely on the employer could affect the willingness of employers to agree to arbitration clauses. To require the union to pay damages does not impose a burden on the union inconsistent with national labor policy, but rather provides an additional incentive for the union to process its members' claims where warranted. Pp. 459 U. S. 224-228.(d) Czosek v. O'Mara, 397 U. S. 25, is not inconsistent with Vaca's recognition that each party should bear the damages attributable to its fault. Pp. 459 U. S. 228-230.642 F.2d 79, reversed and remanded.POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, STEVENS, and O'CONNOR, JJ., joined. WHITE, J., filed an opinion concurring in the judgment in part and dissenting in part, in which MARSHALL and BLACKMUN, JJ., joined, and in all but Part IV of which REHNQUIST, J., joined, post, p. 459 U. S. 230. REHNQUIST, J., filed a dissenting opinion, post, p. 459 U. S. 246. Page 459 U. S. 214

1967_59

MR. JUSTICE STEWART delivered the opinion of the Court.On January 30, 1961, shortly after returning home from work, the petitioner's husband suffered a fall that resulted in his death on February 12. On February 20, 1961, the petitioner, on behalf of herself and her three minor children, filed a claim against her husband's employer, [Footnote 1] the respondent, for compensation death benefits under the Longshoremen's and Harbor Workers' Compensation Act. 44 Stat. 1424, 33 U.S.C. §§ 901-950. The petitioner alleged that her husband's fall on January 30 had resulted from a work-connected injury suffered on January 26. A hearing was held before a Department of Labor Deputy Commissioner, and on June 8, 1961, the Deputy Commissioner rejected the petitioner's claim for failure to establish that her husband's death had resulted from a work-connected injury. [Footnote 2] The petitioner did not Page 390 U. S. 461 bring an action in District Court to set aside the Deputy Commissioner's ruling. 33 U.S.C. § 921. Some time after the Deputy Commissioner's decision, the petitioner discovered an eyewitness to a work-connected injury suffered by her husband on January 30, the same day as his fall at home. On August 22, 1961, the petitioner filed a second compensation action against the respondent -- this time alleging that the fall resulted from an injury suffered on January 30.On September 8, 1961, the petitioner began a wrongful death action in the Northern District of Illinois against a third party, the Norris Grain Company, alleging that her husband's fall resulted from the same January 30 injury. On May 3, 1963, a jury rendered a verdict of $30,000 for the petitioner in that lawsuit. The grain company moved for a new trial, and the trial judge ruled that the motion would be granted unless the petitioner consented to a remittitur of $11,000. On May 16, 1963, without consulting the respondent, the petitioner accepted the remittitur. Judgment was entered for $19,000.On August 29, 1963, a hearing on the petitioner's second compensation action commenced. On January 27, 1964, the Deputy Commissioner entered findings of fact and an award for the petitioner. The respondent brought an action in District Court to set the award aside. The District Court affirmed, but the Court of Appeals reversed. 369 F.2d 344. We granted certiorari to consider questions concerning the administration of the Longshoremen's and Harbor Workers' Compensation Act. 389 U. S. 813.The Court of Appeals held that the petitioner's second compensation action was barred by the doctrine of res judicata. The petitioner contends that that doctrine Page 390 U. S. 462 is displaced in this case by the operation of § 22 of the Act, [Footnote 3] which provides:"Upon his own initiative, or upon the application of any party in interest, on the ground of a change in conditions or because of a mistake in a determination of fact by the deputy commissioner, the deputy commissioner may, at any time prior to one year after the date of the last payment of compensation, whether or not a compensation order has been issued, or at any time prior to one year after the rejection of a claim, review a compensation case in accordance with the procedure prescribed [for original claims], and in accordance with such section issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation, or award compensation."33 U.S.C. § 922. (Emphasis added.) The petitioner asserts that her second compensation action came under § 22 because it challenged a "determination of fact by the deputy commissioner" in her original compensation action -- namely, the finding that her husband's fall did not result from a work-connected injury. The respondent argues that "a mistake in a determination of fact" in § 22 refers only to clerical errors and matters concerning an employee's disability, not to matters concerning an employer's liability. Conceding that nothing in the statutory language supports this reading, the respondent contends that the legislative history reveals Congress' limited purpose. [Footnote 4] Page 390 U. S. 463Section 22 was first enacted as part of the original Longshoremen's and Harbor Workers' Compensation Act in 1927. 44 Stat. 1437. At that time, the section provided for review by the Deputy Commissioner only on the ground of a "change in conditions." The Deputy Commissioner was authorized by the section to "terminate, continue, increase, or decrease" the original compensation award; review was permitted only "during the term of an award."From 1930 to 1933, the United States Employees' Compensation Commission, which was charged with administering the Act, recommended in its annual reports that § 22 be amended to permit review by the Deputy Commissioner at any time. 14th Ann.Rep. of the United States Employees' Compensation Commission (hereafter USECC) 75 (1930); 15th Ann.Rep.USECC 77 (1931); 16th Ann.Rep.USECC 49 (1932); 17th Ann.Rep.USECC 18 (1933). [Footnote 5] In 1934, Congress, while not Page 390 U. S. 464 adopting the recommendation entirely, responded by amending § 22 to permit review "any time prior to one year after the date of the last payment of compensation." 48 Stat. 807. [Footnote 6] At the same time, Congress added a second ground for review by the Deputy Commissioner: "a mistake in a determination of fact." The purpose of this amendment was to "broaden the grounds on which a deputy commissioner can modify an award" by allowing modification where "a mistake in a determination of fact makes such modification desirable in order to render justice under the act." S.Rep. No. 588, 73d Cong., 2d Sess., 3-4 (1934); H.R.Rep. No. 1244, 73d Cong., 2d Sess., 4 (1934).In its annual reports for 1934-1936, the Compensation Commission recommended that § 22 be further amended to apply in cases where the original compensation claim is rejected by the Deputy Commissioner. 18th Ann.Rep.USECC 38 (1934); 19th Ann.Rep.USECC 49 (1935); 20th Ann.Rep.USECC 52 (1936). Congress responded in 1938 by amending § 22 to permit review by the Deputy Commissioner "at any time prior to one year after the rejection of a claim" and to allow the Deputy Commissioner after such review to "award compensation." 52 Stat. 1167. The purpose of this amendment Page 390 U. S. 465 was to extend"the enlarged authority therein [1934 amendment] provided to cases in which the action of the deputy commissioner has been a rejection af the claim."S.Rep. No.1988, 75th Cong., 3d Sess., 8 (1938); H.R.Rep. No.1945, 75th Cong., 3d Sess., 8 (1938).We find nothing in this legislative history to support the respondent's argument that a "determination of fact" means only some determinations of fact, and not others. The respondent points out that the recommendations of the Compensation Commission prior to the 1934 amendment referred to analogous state laws; but those recommendations dealt with the time period in which review was to be available, not with the grounds for review. The respondent has referred us to no decision, state or federal, holding that a statute permitting review of determinations of fact is limited to issues relating to disability. In the absence of persuasive reasons to the contrary, we attribute to the words of a statute their ordinary meaning, [Footnote 7] and we hold that the petitioner's second compensation action, filed a few months after the rejection of her original claim, came within the scope of § 22. [Footnote 8]The respondent raised two other issues in the Court of Appeals, which that court found unnecessary to reach. Page 390 U. S. 466 These issues have been fully briefed and argued in this Court, and, in order to bring this litigation to a close, we dispose of them here.Section 33 of the Longshoremen's and Harbor Workers' Compensation Act permits an individual entitled to compensation to sue a third party for damages. 33 U.S.C. § 933(a). If no such suit is brought and compensation is accepted from the employer under an award, the rights of the employee against third parties are assigned to the employer. 33 U.S.C. § 933(b) and (c). If, as in this case, a suit is brought against a third party, the employer is liable in compensation only to the extent that allowable compensation benefits exceed the recovery from the third party. 33 U.S.C. § 933(f). Section 33(g) of the Act further provides:"If compromise with such third person is made by the person entitled to compensation . . . of an amount less than the compensation to which such person or representative would be entitled to under this chapter, the employer shall be liable for compensation . . . only if such compromise is made with his written approval."33 U.S.C. § 933(g). The respondent contends that the petitioner's acceptance of the judicially ordered remittitur of $11,000 in her third-party lawsuit was a "compromise" within the meaning of § 33(g). We disagree.The Longshoremen's and Harbor Workers' Compensation Act was modeled on the New York employees' compensation statute. Lawson v. Suwannee S.S. Co., 336 U. S. 198, 336 U. S. 205; H.R.Rep. No. 1190, 69th Cong., 1st Sess., 2 (1926). Under the analogous provision of that act, the New York Court of Appeals has held that a remittitur is not a compromise."Plaintiff's stipulation consenting to take that portion of the verdict judicially determined as being Page 390 U. S. 467 not excessive, does not fall within any recognized meaning of the word 'compromise.'"Gallagher v. Carol Construction Co., 272 N.Y. 127, 129, 5 N.E.2d 63, 64. An order of remittitur is a judicial determination of recoverable damages; it is not an agreement among the parties involving mutual concessions. Section 33(g) protects the employer against his employee's accepting too little for his cause of action against a third party. That danger is not present when damages are determined not by negotiations between the employee and the third party, but rather by the independent evaluation of a trial judge. Cf. Bell v. O'Hearne, 284 F.2d 777.Finally, the respondent attacks the Deputy Commissioner's finding of fact that there was a causal connection between the work-connected injury suffered by the petitioner's husband on January 30 and his fall at home some two hours later. The Deputy Commissioner's finding must be affirmed if supported by substantial evidence on the record considered as a whole. O'Leary v. Brown-Pacific-Maxon, Inc., 340 U. S. 504. The District Court held that the Deputy Commissioner's finding was supported by substantial evidence, and we agree. While some of the testimony of the petitioner's medical expert was arguably inconsistent with other parts of his testimony, it was within the province of the Deputy Commissioner to credit part of the witness' testimony without accepting it all.The judgment of the Court of Appeals isReversed

U.S. Supreme CourtBanks v. Chicago Grain Trimmers Assn., Inc., 390 U.S. 459 (1968)Banks v. Chicago Grain Trimmers Assn., Inc.No. 59Argued January 17, 1968Decided April 1, 1968390 U.S. 459SyllabusPetitioner filed a claim against her late husband's employer for compensation death benefits under the Longshoremen's and Harbor Workers' Compensation Act, alleging that his fall at home on January 30, 1961, from which he later died, resulted from a work-connected injury sustained on January 26. A Department of Labor Deputy Commissioner rejected the claim for failure to establish a work-connected injury. Thereafter, petitioner discovered an eyewitness to a work-connected injury to her husband on January 30, about two hours before the fall at home which resulted in his death, and filed a second compensation claim against the employer. Prior to the hearing thereon, petitioner brought a wrongful death action against a third party based on the January 30 injury. The jury returned a verdict for $30,000, but the judge ruled that a motion for a new trial would be granted unless petitioner consented to a remittitur of $11,000. Without consulting the employer, petitioner accepted the remittitur and a judgment for $19,000 was entered. The Deputy Commissioner, after hearings, entered an award for petitioner in the second compensation claim. Respondents brought an action in the District Court to set aside the award. The District Court affirmed, but the Court of Appeals reversed, holding that the second compensation action was barred by the doctrine of res judicata.Held:1. The second claim was not barred by res judicata, but comes within the scope of § 22 of the Act, which provides for review "because of a mistake in a determination of fact" by the Deputy Commissioner "at any time prior to one year after rejection of a claim," and permits him to "award compensation" after such review. Pp. 390 U. S. 462-465.2. An order of remittitur is a judicial determination of recoverable damages, and petitioner's acceptance of the remittitur in her third-party lawsuit was not a compromise within the meaning of § 33(g) of the Act. Pp. 390 U. S. 465-467. Page 390 U. S. 4603. The Deputy Commissioner's finding that there was a causal connection between the January 30 work-connected injury to petitioner's husband and his fall at home two hours later was supported by substantial evidence on the record as a whole, and must be affirmed. P. 390 U. S. 467.369 F.2d 344, reversed.

1985_84-5786

JUSTICE O'CONNOR delivered the opinion of the Court.Under 28 U.S.C. § 2254(d), state court findings of fact "shall be presumed to be correct" in a federal habeas corpus proceeding unless one of eight enumerated exceptions applies. [Footnote 1] The question presented is whether the voluntariness Page 474 U. S. 106 of a confession is an issue of fact entitled to the § 2254(d) presumption.IOn the morning of August 13, 1973, a stranger approached the rural New Jersey home of 17-year-old Deborah Margolin and told her that a heifer was lose at the foot of her driveway. She set out alone to investigate and never returned. Later that day, her mutilated body was found in a nearby stream.The victim's brothers were able to provide a description of the stranger's car and clothing. Based on this information, officers of the New Jersey State Police tentatively identified petitioner and, later that evening, found him at his place of employment. Petitioner responded to the officers' preliminary inquiries and agreed to return to the police barracks for further questioning. Approximately two hours later, Detective Charles Boyce led petitioner to an interrogation room and informed him of his Miranda rights. Petitioner inquired about the scope of his privilege to remain silent, and then executed a written waiver, the validity of which is not at issue.A 58-minute-long interrogation session ensued. During the course of the interview, Detective Boyce told petitioner that Ms. Margolin had just died. That statement, which Boyce knew to be untrue, supported another officer's earlier, and equally false, suggestion that the victim was still alive and could identify her attacker. App. 16-17; Record 109 and 305. Detective Boyce also told petitioner that he had been identified at the Margolin home earlier in the day. In fact, Ms. Margolin's brothers had only provided a general description of the stranger's car and clothing. Finally, Detective Boyce indicated that blood stains had been found on petitioner's front stoop. No such evidence was introduced at trial, and respondents do not now contend that it ever in fact existed.Throughout the interview, Detective Boyce presented himself as sympathetic to petitioner's plight. On several Page 474 U. S. 107 occasions, he stated that he did not consider petitioner to be a criminal, because the perpetrator of the deed had a "mental problem" and needed medical help, rather than punishment. App.19. [Footnote 2] Eventually, petitioner fully confessed to the crime. After doing so, he lapsed into what Detective Boyce described as a "state of shock." Record 84-85. Repeated Page 474 U. S. 108 efforts to rouse him from his stupor failed, and the police summoned an ambulance to transport him to the hospital.The trial court rejected petitioner's motion to suppress the confession, and the jury found petitioner guilty of murder in the first degree. The Superior Court Appellate Division reversed, finding as a matter of law that the confession was the result of "intense and mind-bending psychological compulsion," and therefore was impermissible under the Fourteenth Amendment's guarantee of due process. App. 53. Over three dissents, the Supreme Court of New Jersey reversed again. State v. Miller, 76 N.J. 392, 388 A.2d 218 (1978). After examining the "totality of all the surrounding circumstances," including petitioner's educational level, age, and awareness of his Miranda rights, the court found that the interrogation "did not exceed proper bounds," and that the resulting confession, being voluntary, had been properly admitted into evidence. Id. at 402-405, 388 A.2d at 223-224.Petitioner then sought a writ of habeas corpus in the United States District Court for the District of New Jersey. That court dismissed the application without an evidentiary hearing. A divided panel of the Court of Appeals for the Third Circuit affirmed. 741 F.2d 1456 (1984). Relying on Circuit precedent, [Footnote 3] the court held that the voluntariness of a confession is a "factual issue" within the meaning of 28 U.S.C. § 2254(d). Accordingly, federal review of the New Jersey Supreme Court's determination that petitioner's confession was voluntary was"limited to whether the state court applied the proper legal test, and whether [its] factual conclusions . . . [were] supported on the record as a whole."741 F.2d at 1462. Under this standard, the court concluded, Page 474 U. S. 109 the District Court's denial of the petition for habeas relief was proper.Because the Courts of Appeals have reached differing conclusions on whether state court voluntariness determinations are entitled to the § 2254(d) presumption of correctness, and because of the issue's importance to the administration of criminal justice, we granted certiorari. 471 U.S. 1003 (1985). Compare Brantley v. McKaskle, 722 F.2d 187, 188 (CA5 1984) "([V]oluntariness of a confession is a mixed question of law and fact"), with Alexander v. Smith, 582 F.2d 212, 217 (CA2) (state court voluntariness determination entitled to § 2254(d) presumption), cert. denied, 439 U.S. 990 (1978). We now reverse and remand.IIThis Court has long held that certain interrogation techniques, either in isolation or as applied to the unique characteristics of a particular suspect, are so offensive to a civilized system of justice that they must be condemned under the Due Process Clause of the Fourteenth Amendment. Brown v. Mississippi, 297 U. S. 278 (1936), was the wellspring of this notion, now deeply embedded in our criminal law. Faced with statements extracted by beatings and other forms of physical and psychological torture, the Court held that confessions procured by means "revolting to the sense of justice" could not be used to secure a conviction. Id. at 297 U. S. 286. On numerous subsequent occasions, the Court has set aside convictions secured through the admission of an improperly obtained confession. See, e.g., Mincey v. Arizona, 437 U. S. 385 (1978); Haynes v. Washington, 373 U. S. 503 (1963); Ashcraft v. Tennessee, 322 U. S. 143 (1944); Chambers v. Florida, 309 U. S. 227, 309 U. S. 235-238 (1940). Although these decisions framed the legal inquiry in a variety of different ways, usually through the "convenient shorthand" of asking whether the confession was "involuntary," Blackburn v. Alabama, 361 U. S. 199, 361 U. S. 207 (1960), the Court's analysis has Page 474 U. S. 110 consistently been animated by the view that "ours is an accusatorial, and not an inquisitorial, system," Rogers v. Richmond, 365 U. S. 534, 365 U. S. 541 (1961), and that, accordingly, tactics for eliciting inculpatory statements must fall within the broad constitutional boundaries imposed by the Fourteenth Amendment's guarantee of fundamental fairness. Indeed, even after holding that the Fifth Amendment privilege against compulsory self-incrimination applies in the context of custodial interrogations, Miranda v. Arizona, 384 U. S. 436, 384 U. S. 478 (1966), and is binding on the States, Malloy v. Hogan, 378 U. S. 1, 378 U. S. 6 (1964), the Court has continued to measure confessions against the requirements of due process. See, e.g., Mincey v. Arizona, supra, at 437 U. S. 402; Beecher v. Alabama, 389 U. S. 35, 389 U. S. 38 (1967) (per curiam).Without exception, the Court's confession cases hold that the ultimate issue of "voluntariness" is a legal question requiring independent federal determination. See, e.g., Haynes v. Washington, supra, at 373 U. S. 515-516; Ashcraft v. Tennessee, supra, at 322 U. S. 147-148. As recently as 1978, the Court reaffirmed that it was "not bound by" a state court voluntariness finding and reiterated its historic "duty to make an independent evaluation of the record." Mincey v. Arizona, supra, at 437 U. S. 398. That duty, as Mincey makes explicit, is not limited to instances in which the claim is that the police conduct was "inherently coercive." Ashcraft v. Tennessee, supra, at 322 U. S. 154. It applies equally when the interrogation techniques were improper only because, in the particular circumstances of the case, the confession is unlikely to have been the product of a free and rational will. See Mincey v. Arizona, supra, at 437 U. S. 401. Because the ultimate issue in both categories of cases is the same -- whether the State has obtained the confession in a manner that comports with due process -- the decisions leave no doubt that our independent obligation to decide the constitutional question is identical.Mincey, Ashcraft, and many of the early decisions applying the independent determination rule in confession cases came Page 474 U. S. 111 to the Court on direct appeal from state court judgments. The rule, however, is no less firmly established in cases coming to the federal system on application for a writ of habeas corpus. Davis v. North Carolina, 384 U. S. 737 (1966), resolved the issue with unmistakable clarity. There, the State had admitted into evidence a confession elicited from an impoverished, mentally deficient suspect who had been held incommunicado for 16 days with barely adequate nourishment. Expressly relying on the direct-appeal cases, the Court stated unequivocally that state court determinations concerning the ultimate question of the voluntariness of a confession are not binding in a federal habeas corpus proceeding. Id. at 384 U. S. 741-742.Davis was decided four months before 28 U.S.C. § 2254(d) was signed into law. Act of Nov. 2, 1966, Pub.L. 89-711, 80 Stat. 1105. Respondent contends that, whatever may have been the case prior to 1966, the enactment of § 2254(d) in that year fundamentally altered the nature of federal habeas review of state voluntariness findings. That suggestion finds no support in this Court's decisions. See, e.g., Boulden v. Holman, 394 U. S. 478, 394 U. S. 480 (1969) (finding confession voluntary after making "an independent study of the entire record"); Frazier v. Cupp, 394 U. S. 731, 394 U. S. 739 (1969) (examining "totality of the circumstances" to assess admissibility of confession). More importantly, the history of § 2254(d) undermines any argument that Congress intended that the ultimate question of the admissibility of a confession be treated a "factual issue" within the meaning of that provision. The 1966 amendment was an almost verbatim codification of the standards delineated in Townsend v. Sain, 372 U. S. 293 (1963), for determining when a district court must hold an evidentiary hearing before acting on a habeas petition. When a hearing is not obligatory, Townsend held, the federal court "ordinarily should . . . accept the facts as found" in the state proceeding. Id. at 372 U. S. 318. Congress elevated that exhortation into a mandatory presumption of Page 474 U. S. 112 correctness. But there is absolutely no indication that it intended to alter Townsend's understanding that the "ultimate constitutional question" of the admissibility of a confession was a "mixed questio[n] of fact and law" subject to plenary federal review. Id. at 372 U. S. 309, and n. 6.In short, an unbroken line of cases, coming to this Court both on direct appeal and on review of applications to lower federal courts for a writ of habeas corpus, forecloses the Court of Appeals' conclusion that the "voluntariness" of a confession merits something less than independent federal consideration. To be sure, subsidiary factual questions, such as whether a drug has the properties of a truth serum, id. at 372 U. S. 306, or whether in fact the police engaged in the intimidation tactics alleged by the defendant, LaVallee v. Delle Rose, 410 U. S. 690, 410 U. S. 693-695 (1973) (per curiam), are entitled to the § 2254(d) presumption. And the federal habeas court, should, of course, give great weight to the considered conclusions of a coequal state judiciary. Culombe v. Connecticut, 367 U. S. 568, 367 U. S. 605 (1961) (opinion of Frankfurter, J.). But, as we now reaffirm, the ultimate question whether, under the totality of the circumstances, the challenged confession was obtained in a manner compatible with the requirements of the Constitution is a matter for independent federal determination.IIIThe Court of Appeals recognized that treating the voluntariness of a confession as an issue of fact was difficult to square with "fifty years of caselaw" in this Court. 741 F.2d at 1462. It believed, however, that this substantial body of contrary precedent was not controlling in light of our more recent decisions addressing the scope of the § 2254(d) presumption of correctness. See Wainwright v. Witt, 469 U. S. 412, 469 U. S. 429 (1985) (trial court's determination that a prospective juror in a capital case was properly excluded for cause entitled to presumption); Patton v. Yount, 467 U. S. 1025 (1984) Page 474 U. S. 113 (impartiality of an individual juror); Rushen v. Spain, 464 U. S. 114 (1983) (per curiam) (effect of ex parte communication on impartiality of individual juror); Maggio v. Fulford, 462 U. S. 111 (1983) (per curiam) (competency to stand trial); Marshall v. Lonberger, 459 U. S. 422, 459 U. S. 431-437 (1983) (determination that defendant received and understood sufficient notice of charges against him to render guilty plea voluntary). We acknowledge that the Court has not charted an entirely clear course in this area. We reject, however, the Court of Appeals' conclusion that these case-specific holdings tacitly overturned the longstanding rule that the voluntariness of a confession is a matter for independent federal determination.In the § 2254(d) context, as elsewhere, the appropriate methodology for distinguishing questions of fact from questions of law has been, to say the least, elusive. See Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485 (1984); Baumgartner v. United States, 322 U. S. 665, 322 U. S. 671 (1944). A few principles, however, are by now well established. For example, that an issue involves an inquiry into state of mind is not at all inconsistent with treating it as a question of fact. See, e.g., Maggio v. Fulford, supra. Equally clearly, an issue does not lose its factual character merely because its resolution is dispositive of the ultimate constitutional question. See Dayton Board of Education v. Brinkman, 443 U. S. 526, 443 U. S. 534 (1979) (finding of intent to discriminate subject to "clearly erroneous" standard of review). But beyond these elemental propositions, negative in form, the Court has yet to arrive at "a rule or principle that will unerringly distinguish a factual finding from a legal conclusion." Pullman-Standard v. Swint, 456 U. S. 273, 456 U. S. 288 (1982).Perhaps much of the difficulty in this area stems from the practical truth that the decision to label an issue a "question of law," a "question of fact," or a "mixed question of law and fact" is sometimes as much a matter of allocation as it is of Page 474 U. S. 114 analysis. See Monaghan, Constitutional Fact Review, 85 Colum.L.Rev. 229, 237 (1985). At least in those instances in which Congress has not spoken and in which the issue falls somewhere between a pristine legal standard and a simple historical fact, the fact/law distinction at times has turned on a determination that, as a matter of the sound administration of justice, one judicial actor is better positioned than another to decide the issue in question. Where, for example, as with proof of actual malice in First Amendment libel cases, 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. See Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. at 466 U. S. 503. Similarly, on rare occasions in years past, the Court has justified independent federal or appellate review as a means of compensating for "perceived shortcomings of the trier of fact by way of bias or some other factor. . . ." Id. at 466 U. S. 518 (REHNQUIST, J., dissenting). See, e.g., Haynes v. Washington, 373 U.S. at 373 U. S. 516; Watts v. Indiana, 338 U. S. 49, 338 U. S. 52 (1949) (opinion of Frankfurter, J.). Cf. Norris v. Alabama, 294 U. S. 587 (1935).In contrast, other considerations often suggest the appropriateness of resolving close questions concerning the status of an issue as one of "law" or "fact" in favor of extending deference to the trial court. When, for example, the issue involves the credibility of witnesses, and therefore turns largely on an evaluation of demeanor, there are compelling and familiar justifications for leaving the process of applying law to fact to the trial court and according its determinations presumptive weight. Patton v. Yount, supra, and Wainwright v. Witt, supra, are illustrative. There, the Court stressed that the state trial judge is in a position to assess juror bias that is far superior to that of federal judges reviewing an application for a writ of habeas corpus. Principally Page 474 U. S. 115 for that reason, the decisions held, juror bias merits treatment as a "factual issue" within the meaning of § 2254(d) notwithstanding the intimate connection between such determinations and the constitutional guarantee of an impartial jury.For several reasons, we think that it would be inappropriate to abandon the Court's longstanding position that the ultimate question of the admissibility of a confession merits treatment as a legal inquiry requiring plenary federal review. We note at the outset that we do not write on a clean slate. "Very weighty considerations underlie the principle that courts should not lightly overrule past decisions." Moragne v. States Marine Lines, Inc., 398 U. S. 375, 398 U. S. 403 (1970). Thus, even assuming that contemporary considerations supported respondent's construction of the statute, nearly a half century of unwavering precedent weighs heavily against any suggestion that we now discard the settled rule in this area. Moreover, as previously noted, Congress patterned § 2254(d) after Townsend v. Sain, 372 U. S. 293 (1963), a case that clearly assumed that the voluntariness of a confession was an issue for independent federal determination. Thus, not only are stare decisis concerns compelling, but, unlike in Marshall v. Lonberger, 459 U. S. 422 (1983), Rushen v. Spain, 464 U. S. 114 (1983), or any of our other recent § 2254(d) cases, in the confession context, we have the benefit of some congressional guidance in resolving whether the disputed issue falls outside of the scope of the § 2254(d) presumption. Although the history of that provision is not without its ambiguities, it is certainly clear enough to tip the scales in favor of treating the voluntariness of a confession as beyond the reach of § 2254(d).In addition to considerations of stare decisis and congressional intent, the nature of the inquiry itself lends support to the conclusion that "voluntariness" is a legal question meriting independent consideration in a federal habeas corpus proceeding. Although sometimes framed as an issue of Page 474 U. S. 116 "psychological fact," Culombe v. Connecticut, 367 U.S. at 367 U. S. 603, the dispositive question of the voluntariness of a confession has always had a uniquely legal dimension. It is telling that, in confession cases coming from the States, this Court has consistently looked to the Due Process Clause of the Fourteenth Amendment to test admissibility. See, e.g., Mincey v. Arizona, 437 U.S. at 437 U. S. 402. The locus of the right is significant, because it reflects the Court's consistently held view that the admissibility of a confession turns as much on whether the techniques for extracting the statements, as applied to this suspect, are compatible with a system that presumes innocence and assures that a conviction will not be secured by inquisitorial means as on whether the defendant's will was, in fact, overborne. See, e.g., Gallegos v. Colorado, 370 U. S. 49, 370 U. S. 51 (1962) (suggesting that "a compound of two influences" requires that some confessions be condemned); Culombe v. Connecticut, supra, at 367 U. S. 605 (describing voluntariness as an "amphibian"). This hybrid quality of the voluntariness inquiry, [Footnote 4] subsuming, as it does, a "complex of values," Blackburn v. Alabama, 361 U.S. at 361 U. S. 207, itself militates against treating the question as one of simple historical fact.Putting to one side whether "voluntariness" is analytically more akin to a fact or a legal conclusion, the practical considerations that have led us to find other issues within the scope of the § 2254(d) presumption are absent in the confession context. First, unlike the impartiality of a given juror, Patton v. Yount, 467 U.S. at 467 U. S. 1036, or competency to stand trial, Maggio v. Fulford, 462 U.S. at 462 U. S. 117, assessments of credibility Page 474 U. S. 117 and demeanor are not crucial to the proper resolution of the ultimate issue of "voluntariness." Of course, subsidiary questions, such as the length and circumstances of the interrogation, the defendant's prior experience with the legal process, and familiarity with the Miranda warnings, often require the resolution of conflicting testimony of police and defendant. The law is therefore clear that state court findings on such matters are conclusive on the habeas court if fairly supported in the record and if the other circumstances enumerated in § 2254(d) are inapplicable. But once such underlying factual issues have been resolved, and the moment comes for determining whether, under the totality of the circumstances, the confession was obtained in a manner consistent with the Constitution, the state court judge is not in an appreciably better position than the federal habeas court to make that determination.Second, the allocution of a guilty plea, Marshall v. Lonberger, supra, the adjudication of competency to stand trial, Maggio v. Fulford, supra, and the determination of juror bias, Wainwright v. Witt, 469 U. S. 412 (1985), take place in open court on a full record. In marked contrast, the critical events surrounding the taking of a confession almost invariably occur in a secret and inherently more coercive environment. Miranda v. Arizona, 384 U.S. at 384 U. S. 458. These circumstances, standing alone, cannot be dispositive of the question whether a particular issue falls within the reach of § 2254(d). However, together with the inevitable and understandable reluctance to exclude an otherwise reliable admission of guilt, Jackson v. Denno, 378 U. S. 368, 378 U. S. 381 (1964), they elevate the risk that erroneous resolution of the voluntariness question might inadvertently frustrate the protection of the federal right. See Haynes v. Washington, 373 U.S. at 373 U. S. 516; Ward v. Texas, 316 U. S. 547 (1942). We reiterate our confidence that state judges, no less than their federal counterparts, will properly discharge their duty to protect the constitutional rights of criminal defendants. We Page 474 U. S. 118 note only that in the confession context, independent federal review has traditionally played an important parallel role in protecting the rights at stake when the prosecution secures a conviction through the defendant's own admissions.IVAfter defending at length its conclusion that the voluntariness of a confession was entitled to the § 2254(d) presumption, and after carefully analyzing the petitioner's confession under that standard, the Court of Appeals suggested in a brief footnote that it "would reach the same result" even were it to give the issue plenary consideration. 741 F.2d at 1467, n. 21. Inasmuch as it is not clear from this language that the court did, in fact, independently evaluate the admissibility of the confession, and because, in any event, we think that the case warrants fuller analysis under the appropriate standard, we reverse the decision below and remand for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtMiller v. Fenton, 474 U.S. 104 (1985)Miller v. FentonNo. 84-5786Argued October 16, 1985Decided December 3, 1985474 U.S. 104SyllabusPetitioner, after a 58-minute interrogation at the New Jersey State Police Barracks, confessed to a murder. The New Jersey trial court rejected his motion to suppress the confession, and the jury found him guilty of first-degree murder. The New Jersey Superior Court Appellate Division reversed, finding as a matter of law that the confession was the result of compulsion, and thus was impermissible under the Fourteenth Amendment's due process guarantee. The New Jersey Supreme Court reversed, finding, after examining the "totality of all the surrounding circumstances," that the interrogation was proper and that the resulting confession, being voluntary, had been properly admitted into evidence. Petitioner then sought a writ of habeas corpus in Federal District Court, which dismissed the petition without an evidentiary hearing. The Court of Appeals affirmed, holding that the voluntariness of a confession is a "factual issue" within the meaning of 28 U.S.C. § 2254(d), which provides that state court findings of fact, with certain exceptions, "shall be presumed to be correct" in a federal habeas corpus proceeding, and that accordingly federal review of the New Jersey Supreme Court's determination that petitioner's confession was voluntary was limited to whether that court applied the proper legal test and whether its factual conclusions were supported by the record. Under this standard, the Court of Appeals concluded that the District Court's denial of the habeas corpus petition was proper.Held: The voluntariness of a confession is not an issue of fact entitled to the § 2254(d) presumption, but is a legal question meriting independent consideration in a federal habeas corpus proceeding. Pp. 474 U. S. 109-118.(a) There is no support in this Court's decisions for the suggestion that the enactment of § 2254(d) in 1966 altered this Court's prior confession cases holding that the ultimate issue of "voluntariness" is a legal question requiring independent federal determination. More importantly, § 2254(d)'s history undermines any argument that Congress intended that the ultimate question of the admissibility of a confession be treated as a "factual issue" within the meaning of that provision. Pp. 474 U. S. 109-112.(b) In addition to considerations of stare decisis and congressional intent, the nature of the "voluntariness" inquiry itself lends support to the Page 474 U. S. 105 holding in this case. Moreover, the practical considerations that have led this Court to find other issues within the scope of the § 2254(d) presumption are absent in the confession context. Unlike such issues as the impartiality of a juror or competency to stand trial, assessments of credibility and demeanor are not crucial to the proper resolution of the ultimate issue of voluntariness. And the critical events surrounding the taking of a confession almost invariably occur, not in open court, but in a secret and more coercive environment. Pp. 474 U. S. 112-118.741 F.2d 1466, reversed and remanded.O'CONNOR, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, MARSHALL, BLACKMUN, POWELL, and STEVENS, JJ., joined. REHNQUIST, J., filed a dissenting opinion, post, p. 474 U. S. 118.

1961_4

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.IThis suit was initiated in November, 1955, when the Government filed a civil action in the United States District Court for the Eastern District of Missouri alleging that a contemplated merger between the G. R. Kinney Company, Inc. (Kinney) and the Brown Shoe Company, Inc. (Brown), through an exchange of Kinney for Brown stock, would violate § 7 of the Clayton Act, 15 U.S.C. § 18. The Act, as amended, provides in pertinent part:"No corporation engaged in commerce shall acquire, directly or indirectly, the whole or any part of the stock or other share capital . . . of another corporation engaged also in commerce, where in any line of commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly."The complaint sought injunctive relief under § 15 of the Clayton Act, 15 U.S.C. § 25, to restrain consummation of the merger.A motion by the Government for a preliminary injunction pendente lite was denied, and the companies were permitted to merge provided, however, that their businesses be operated separately and that their assets be kept separately identifiable. The merger was then effected on May 1, 1956. Page 370 U. S. 297In the District Court, the Government contended that the effect of the merger of Brown the third largest seller of shoes by dollar volume in the United States, a leading manufacturer of men's, women's, and children's shoes, and a retailer with over 1,230 owned, operated or controlled retail outlets, [Footnote 1] and Kinney, the eighth largest company, by dollar volume, among those primarily engaged in selling shoes, itself a large manufacturer of shoes and a retailer with over 350 retail outlets, "may be substantially to lessen competition or to tend to create a monopoly" by eliminating actual or potential competition in the production of shoes for the national wholesale shoe market and in the sale of shoes at retail in the Nation by foreclosing competition from "a market represented by Kinney's retail outlets whose annual sales exceed $42,000,000," and by enhancing Brown's competitive advantage over other producers, distributors and sellers of shoes. The Government argued that the "line of commerce" affected by this merger is "footwear," or alternatively, that the "line[s]" are "men's," "women's," and "children's" shoes, separately considered, and that the "section of the country," within which the anticompetitive effect of the merger is to be judged is the Nation as a whole, or, alternatively, each separate city or city and its Page 370 U. S. 298 immediate surrounding area in which the parties sell shoes at retail.In the District Court, Brown contended that the merger would be shown not to endanger competition if the "line[s] of commerce" and the "section[s] of the country" were properly determined. Brown urged that not only were the age and sex of the intended customers to be considered in determining the relevant line of commerce, but that differences in grade of material, quality of workmanship, price, and customer use of shoes resulted in establishing different lines of commerce. While agreeing with the Government that, with regard to manufacturing, the relevant geographic market for assessing the effect of the merger upon competition is the country as a whole, Brown contended that, with regard to retailing, the market must vary with economic reality from the central business district of a large city to a "standard metropolitan area" [Footnote 2] for a smaller community. Brown further contended that, both at the manufacturing level and at the retail level, the shoe industry enjoyed healthy competition, and that the vigor of this competition would not, in any event, be diminished by the proposed merger, because Kinney manufactured less than 0.5% and retailed less than 2% of the Nation's shoes.The District Court rejected the broadest contentions of both parties. The District Court found that"there is one group of classifications which is understood and recognized Page 370 U. S. 299 by the entire industry and the public the classification into 'men's,' 'women's' and 'children's' shoes separately and independently."On the other hand, "[t]o classify shoes as a whole could be unfair and unjust; to classify them further would be impractical, unwarranted and unrealistic."Realizing that "the areas of effective competition for retailing purposes cannot be fixed with mathematical precision," the District Court found that,"when determined by economic reality, for retailing, a 'section of the country' is a city of 10,000 or more population and its immediate and contiguous surrounding area, regardless of name designation, and in which a Kinney store and a Brown (operated, franchise, or plan) [Footnote 3] store are located."The District Court rejected the Government's contention that the combining of the manufacturing facilities of Brown and Kinney would substantially lessen competition in the production of men's, women's, or children's shoes for the national wholesale market. However, the District Court did find that the likely foreclosure of other manufacturers from the market represented by Kinney's retail outlets may substantially lessen competition in the manufacturers' distribution of "men's," "women's," and "children's" shoes, considered separately, throughout the Nation. The District Court also found that the merger may substantially lessen competition in retailing alone in "men's," "women's," and "children's" shoes, considered separately, in every city of 10,000 or more population and its immediate surrounding area in which both a Kinney and a Brown store are located.Brown's contentions here differ only slightly from those made before the District Court. In order fully to understand and appraise these assertions, it is necessary to set Page 370 U. S. 300 out in some detail the District Court's findings concerning the nature of the shoe industry and the place of Brown and Kinney within that industry.The IndustryThe District Court found that, although domestic shoe production was scattered among a large number of manufacturers, a small number of large companies occupied a commanding position. Thus, while the 24 largest manufacturers produced about 35% of the Nation's shoes, the top 4 -- International, Endicott-Johnson, Brown (including Kinney) and General Shoe -- alone produced approximately 23% of the Nation's shoes, or 65% of the production of the top 24.In 1955, domestic production of nonrubber shoes was 509.2 million pairs, of which about 103.6 million pairs were men's shoes, about 271 million pairs were women's shoes, and about 134.6 million pairs were children's shoes. [Footnote 4] The District Court found that men's, women's, and children's shoes are normally produced in separate factories.The public buys these shoes through about 70,000 retail outlets, only 22,000 of which, however, derive 50% or more of their gross receipts from the sale of shoes and are classified as "shoe stores" by the Census Bureau. [Footnote 5] These Page 370 U. S. 301 22,000 shoe stores were found generally to sell (1) men's shoes only, (2) women's shoes only, (3) women's and children's shoes, or (4) men's, women's, and children's shoes.The District Court found a "definite trend" among shoe manufacturers to acquire retail outlets. For example, International Shoe Company had no retail outlets in 1945, but, by 1956, had acquired 130; General Shoe Company had only 80 retail outlets in 1945, but had 526 by 1956; Shoe Corporation of America, in the same period, increased its retail holdings from 301 to 842; Melville Shoe Company, from 536 to 947; and Endicott-Johnson, from 488 to 540. Brown, itself, with no retail outlets of its own prior to 1951, had acquired 845 such outlets by 1956. Moreover, between 1950 and 1956, nine independent shoe store chains, operating 1,114 retail shoe stores, were found to have become subsidiaries of these large firms and to have ceased their independent operations.And once the manufacturers acquired retail outlets, the District Court found there was a "definite trend" for the parent manufacturers to supply an ever increasing percentage of the retail outlets' needs, thereby foreclosing other manufacturers from effectively competing for the retail accounts. Manufacturer-dominated stores were found to be "drying up" the available outlets for independent producers.Another "definite trend" found to exist in the shoe industry was a decrease in the number of plants manufacturing shoes. And there appears to have been a concomitant decrease in the number of firms manufacturing shoes. In 1947, there were 1,077 independent manufacturers of shoes, but, by 1954, their number had decreased about 10% to 970. [Footnote 6] Page 370 U. S. 302Brown ShoeBrown Shoe was found not only to have been a participant, but also a moving factor, in these industry trends. Although Brown had experimented several times with operating its own retail outlets, by 1945, it had disposed of them all. However, in 1951, Brown again began to seek retail outlets by acquiring the Nation's largest operator of leased shoe departments, Wohl Shoe Company (Wohl), which operated 250 shoe departments in department stores throughout the United States. Between 1952 and 1955, Brown made a number of smaller acquisitions: Wetherby-Kayser Shoe Company (three retail stores), Barnes & Company (two stores), Reilly Shoe Company (two leased shoe departments), Richardson Shoe Store (one store), and Wohl Shoe Company of Dallas (not connected with Wohl) (leased shoe departments in Dallas). In 1954, Brown made another major acquisition: Regal Shoe Corporation which, at the time, operated one manufacturing plant producing men's shoes and 110 retail outlets.The acquisition of these corporations was found to lead to increased sales by Brown to the acquired companies. Thus, although, prior to Brown's acquisition of Wohl in 1951, Wohl bought from Brown only 12.8% of its total purchases of shoes, it subsequently increased its purchases to 21.4% in 1952 and to 32.6% in 1955. Wetherby-Kayser's purchases from Brown increased from 10.4% before acquisition to over 50% after. Regal, which had previously sold no shoes to Wohl and shoes worth only $89,000 to Brown, in 1956 sold shoes worth $265,000 to Wohl and $744,000 to Brown.During the same period of time, Brown also acquired the stock or assets of seven companies engaged solely in shoe manufacturing. As a result, in 1955, Brown was the Page 370 U. S. 303 fourth largest shoe manufacturer in the country, producing about 25.6 million pairs of shoes, or about 4% of the Nation's total footwear production.KinneyKinney is principally engaged in operating the largest family-style shoe store chain in the United States. At the time of trial, Kinney was found to be operating over 400 such stores in more than 270 cities. These stores were found to make about 1.2% of all national retail shoe sales by dollar volume. Moreover, in 1955, the Kinney stores sold approximately 8 million pairs of nonrubber shoes, or about 1.6% of the national pairage sales of such shoes. Of these sales, approximately 1.1 million pairs were of men's shoes, or about 1% of the national pairage sales of men's shoes; approximately 4.2 million pairs were of women's shoes, or about 1.5% of the national pairage sales of women's shoes; and approximately 2.7 million pairs were of children's shoes, or about 2% of the national pairage sales of children's shoes. [Footnote 7]In addition to this extensive retail activity, Kinney owned and operated four plants which manufactured men's, women's, and children's shoes and whose combined output was 0.5% of the national shoe production in 1955, making Kinney the twelfth largest shoe manufacturer in the United States.Kinney stores were found to obtain about 20% of their shoes from Kinney's own manufacturing plants. At the time of the merger, Kinney bought no shoes from Brown; Page 370 U. S. 304 however, in line with Brown's conceded reasons [Footnote 8] for acquiring Kinney, Brown had, by 1957, become the largest outside supplier of Kinney's shoes, supplying 7.9% of all Kinney's needs.It is in this setting that the merger was considered and held to violate § 7 of the Clayton Act. The District Court ordered Brown to divest itself completely of all stock, share capital, assets or other interests it held in Kinney, to operate Kinney to the greatest degree possible as an independent concern pending complete divestiture, to refrain thereafter from acquiring or having any interest in Kinney's business or assets, and to file with the court within 90 days a plan for carrying into effect the divestiture decreed. The District Court also stated it would retain jurisdiction over the cause to enable the parties to apply for such further relief as might be necessary to enforce and apply the judgment. Prior to its submission of a divestiture plan, Brown filed a notice of appeal in the District Court. It then filed a jurisdictional statement in this Court, seeking review of the judgment below as entered.IIJURISDICTIONAppellant's jurisdictional statement cites as the basis of our jurisdiction over this appeal § 2 of the Expediting Page 370 U. S. 305 Act of February 11, 1903, 32 Stat. 823, as amended, 15 U.S.C. § 29. In a civil antitrust action in which the United States is the complainant that Act provides for a direct appeal to this Court from "the final judgment of the district court." (Emphasis supplied.) [Footnote 9] The Government does not contest appellant's claim of jurisdiction; on the contrary, it moved to have the judgment below summarily affirmed, conceding our present jurisdiction to review the merits of that judgment. We deferred ruling on the Government's motion for summary affirmance and noted probable jurisdiction over the appeal. 363 U.S. 825. [Footnote 10]It was suggested from the bench during the oral argument that, since the judgment of the District Court does not include a specific plan for the dissolution of the Brown-Kinney merger, but reserves such a ruling pending the filing of suggested plans for implementing divestiture, the judgment below is not "final" as contemplated by the Expediting Act. In response to that suggestion, both parties have filed briefs contending that we do have jurisdiction to dispose of the case on the merits in its present posture. However, the mere consent of the parties to the Court's consideration and decision of the case cannot, by itself, confer jurisdiction on the Court. See American Fire & Casualty Co. v. Finn, 341 U. S. 6, 341 U. S. 17-18; People's Bank of Belville v. Calhoun, 102 U. S. 256, 102 U. S. 260-261; Capron v. Van Noorden, 2 Cranch 126, 6 U. S. 127. Therefore, a review of the sources of the Court's jurisdiction is a threshold Page 370 U. S. 306 inquiry appropriate to the disposition of every case that comes before us. Revised Rules of the Supreme Court, 15(1)(b), 23(1)(b); Kesler v. Department of Public Safety, 369 U. S. 153; Collins v. Miller, 252 U. S. 364; United States v. More, 3 Cranch 159.The requirement that a final judgment shall have been entered in a case by a lower court before a right of appeal attaches has an ancient history in federal practice, first appearing in the Judiciary Act of 1789. [Footnote 11] With occasional modifications, the requirement has remained a cornerstone of the structure of appeals in the federal courts. [Footnote 12] The Court has adopted essentially practical tests for identifying those judgments which are, and those which are not, to be considered "final." See, e.g., Cobbledick v. United States, 309 U. S. 323, 309 U. S. 326; Market Street R. Co. v. Railroad Comm'n, 324 U. S. 548, 324 U. S. 552; Republic Natural Gas Co. v. Oklahoma, 334 U. S. 62, 334 U. S. 69; Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541, 337 U. S. 546; DiBella v. United States, 369 U. S. 121, 369 U. S. 124, 369 U. S. 129; cf. Federal Trade Comm'n v. Minneapolis-Honeywell Regulator Co., 344 U. S. 206, 344 U. S. 212; United States v. F. & M. Schaefer Brewing Co., 356 U. S. 227, 356 U. S. 232. A pragmatic approach to the question of finality has been considered essential to the achievement of the "just, speedy, and inexpensive determination of every action": [Footnote 13] the touchstones of federal procedure.In most cases in which the Expediting Act has been cited as the basis of this Court's jurisdiction, the issue of "finality" has not been raised or discussed by the parties or the Court. On but few occasions have particular Page 370 U. S. 307 orders in suits to which that Act is applicable been considered in the light of claims that they were insufficiently "final" so as to preclude appeal to this Court. Compare Schine Chain Theatres v. United States, 329 U.S. 686, with Schine Chain Theatres v. United States, 334 U. S. 110. The question has generally been passed over without comment in adjudications on the merits. While we are not bound by previous exercises of jurisdiction in cases in which our power to act was not questioned but was passed sub silentio, United States v. Tucker Truck Lines, Inc., 344 U. S. 33, 344 U. S. 38; United States ex rel. Arant v. Lane, 245 U. S. 166, 245 U. S. 170, neither should we disregard the implications of an exercise of judicial authority assumed to be proper for over 40 years. [Footnote 14] Cf. 336 U. S. Mo Page 370 U. S. 308 Hock Ke Lok Po, 336 U. S. 368, 336 U. S. 379-380; Radio Station WOW v. Johnson, 326 U. S. 120, 326 U. S. 125-126.We think the decree of the District Court in this case had sufficient indicia of finality for us to hold that the judgment is properly appealable at this time. We note, first, that the District Court disposed on the entire complaint filed by the Government. Every prayer for relief was passed upon. Full divestiture by Brown of Kinney's stock and assets was expressly required. Appellant was permanently enjoined from acquiring or having any further interest in the business, stock or assets of the other defendant in the suit. The single provision of the judgment by which its finality may be questioned is the one requiring appellant to propose in the immediate future a plan for carrying into effect the court's order of divestiture. However, when we reach the merits of, and affirm, the judgment below, the sole remaining task for the District Court will be its acceptance of a plan for full divestiture, and the supervision of the plan so accepted. Further rulings of the District Court in administering its decree, facilitated by the fact that the defendants below have been required to maintain separate books pendente lite, are sufficiently independent of, and subordinate to, the issues presented by this appeal to make the case in its present posture a proper one for review now. [Footnote 15] Appellant here does not attack the full divestiture ordered by the District Court as such; it is appellant's contention that, Page 370 U. S. 309 under the facts of the case, as alleged and proved by the Government, no order of divestiture could have been proper. The propriety of divestiture was considered below and is disputed here on an "all or nothing" basis. It is ripe for review now, and will, thereafter, be foreclosed. Repetitive judicial consideration of the same question in a single suit will not occur here. Cf. Radio Station WOW v. Johnson, supra, at 326 U. S. 127; Catlin v. United States, 324 U. S. 229, 324 U. S. 233-234; Cobbledick v. United States, supra, 309 U.S. at 309 U. S. 325, 309 U. S. 330.A second consideration supporting our view is the character of the decree still to be entered in this suit. It will be an order of full divestiture. Such an order requires careful, and often extended, negotiation and formulation. This process does not take place in a vacuum, but, rather, in a changing market place, in which buyers and bankers must be found to accomplish the order of forced sale. The unsettling influence of uncertainty as to the affirmance of the initial, underlying decision compelling divestiture would only make still more difficult the task of assuring expeditious enforcement of the antitrust laws. The delay in withholding review of any of the issues in the case until the details of a divestiture had been approved by the District Court and reviewed here could well mean a change in market conditions sufficiently pronounced to render impractical or otherwise unenforceable the very plan of asset disposition for which the litigation was held. The public interest, as well as that of the parties, would lose by such procedure.Lastly, holding the decree of the District Court in the instant case less than "final" and, thus, not appealable, would require a departure from a settled course of the Court's practice. It has consistently reviewed antitrust decrees contemplating either future divestiture or other comparable remedial action prior to the formulation and Page 370 U. S. 310 entry of the precise details of the relief ordered. No instance has been found in which the Court has reviewed a case following a divestiture decree such as the one we are asked to consider here, in which the party subject to that decree has later brought the case back to this Court with claims of error in the details of the divestiture finally approved. [Footnote 16] And only two years ago, we were unanimous in accepting jurisdiction, and in affirming the judgment of a District Court similar to the one entered here, in the only case under amended § 7 of the Clayton Act brought before us at a juncture comparable to the instant litigation. See Maryland & Virginia Milk Producers Ass'n v. United States, 362 U. S. 458, 362 U. S. 472-473. [Footnote 17] A fear of piecemeal appeals because of our adherence to existing procedure can find no support in history. Thus, the substantial body Page 370 U. S. 311 of precedent for accepting jurisdiction over this case in its present posture supports the practical considerations previously discussed. We believe a contrary result would be inconsistent with the very purposes for which the Expediting Act was passed and that gave it its name.IIILEGISLATIVE HISTORYThis case is one of the first to come before us in which the Government's complaint is based upon allegations that the appellant has violated § 7 of the Clayton Act, as that section was amended in 1950. [Footnote 18] The amendments adopted in 1950 culminated extensive efforts over a number of years, on the parts of both the Federal Trade Commission and some members of Congress, to secure revision of a section of the antitrust laws considered by many observers to be ineffective in its then existing form. Sixteen bills to amend § 7 during the period 1943 to 1949 Page 370 U. S. 312 alone were introduced for consideration by the Congress, and full public hearings on proposed amendments were held in three separate sessions. [Footnote 19] In the light of this extensive legislative attention to the measure, and the broad, general language finally selected by Congress for the expression of its will, we think it appropriate to review the history of the amended Act in determining whether the judgment of the court below was consistent with the intent of the legislature. See United States v. E.I. du Pont de Nemours & Co., 353 U. S. 586, 353 U. S. 591-592; Schwegmann Bros. v. Calvert Distillers Corp., 341 U. S. 384, 341 U. S. 390-395; Federal Trade Comm'n v. Morton Salt Co., 334 U. S. 37, 334 U. S. 43-46, 334 U. S. 49; Corn Products Refining Co. v. Federal Trade Comm'n, 324 U. S. 726, 324 U. S. 734-737.As enacted in 1914, § 7 of the original Clayton Act prohibited the acquisition by one corporation of the stock of another corporation when such acquisition would result in a substantial lessening of competition between the acquiring and the acquired companies, or tend to Page 370 U. S. 313 create a monopoly in any line of commerce. The Act did not, by its explicit terms, or as construed by this Court, bar the acquisition by one corporation of the assets of another. [Footnote 20] Nor did it appear to preclude the acquisition of stock in any corporation other than a direct competitor. [Footnote 21] Although proponents of the 1950 amendments to the Act suggested that the terminology employed in these provisions was the result of accident or an unawareness that the acquisition of assets could be as inimical to competition as stock acquisition, a review of the legislative history of the original Clayton Act fails to support such views. [Footnote 22] The possibility of asset acquisition was discussed, [Footnote 23] but was not considered important Page 370 U. S. 314 to an Act then conceived to be directed primarily at the development of holding companies and at the secret acquisition of competitors through the purchase of all or parts of such competitors' stock. [Footnote 24]It was, however, not long before the Federal Trade Commission recognized deficiencies in the Act as first enacted. Its Annual Reports frequently suggested amendments, principally along two lines: first, to "plug the loophole" exempting asset acquisitions from coverage under the Act, and second, to require companies proposing a merger to give the Commission prior notification of their plans. [Footnote 25] The Final Report of the Temporary National Economic Committee also recommended changes focusing on these two proposals. [Footnote 26] Hearings were held on some bills incorporating either or both of these changes but, prior to the amendments adopted in 1950, none reached the floor of Congress of plenary consideration. Although the bill that was eventually to become amended § 7 was confined to embracing within the Act's terms the Page 370 U. S. 315 acquisition of assets as well as stock, in the course of the hearings conducted in both the Eightieth and Eighty-first Congresses, a more far-reaching examination of the purposes and provisions of § 7 was undertaken. A review of the legislative history of these amendments provides no unmistakably clear indication of the precise standards the Congress wished the Federal Trade Commission and the courts to apply in judging the legality of particular mergers. However, sufficient expressions of a consistent point of view may be found in the hearings, committee reports of both the House and Senate, and in floor debate to provide those charged with enforcing the Act with a usable frame of reference within which to evaluate any given merger.The dominant theme pervading congressional consideration of the 1950 amendments was a fear of what was considered to be a rising tide of economic concentration in the American economy. Apprehension in this regard was bolstered by the publication in 1948 of the Federal Trade Commission's study on corporate mergers. Statistics from this and other current studies were cited as evidence of the danger to the American economy in unchecked corporate expansions through mergers. [Footnote 27] Other considerations cited in support of the bill were the desirability Page 370 U. S. 316 of retaining "local control" over industry and the protection of small businesses. [Footnote 28] Throughout the recorded discussion may be found examples of Congress' fear not only of accelerated concentration of economic power on economic grounds, but also of the threat to other values a trend toward concentration was thought to pose.What were some of the factors, relevant to a judgment as to the validity of a given merger, specifically discussed by Congress in redrafting § 7?First, there is no doubt that Congress did wish to "plug the loophole" and to include within the coverage of the Act the acquisition of assets no less than the acquisition of stock. [Footnote 29] Page 370 U. S. 317Second, by the deletion of the "acquiring-acquired" language in the original text, [Footnote 30] it hoped to make plain that § 7 applied not only to mergers between actual competitors, but also to vertical and conglomerate mergers whose effect may tend to lessen competition in any line of commerce in any section of the country. [Footnote 31]Third, it is apparent that a keystone in the erection of a barrier to what Congress saw was the rising tide of economic concentration, was its provision of authority for arresting mergers at a time when the trend to a lessening of competition in a line of commerce was still in its incipiency. Congress saw the process of concentration in American business as a dynamic force; it sought to assure the Federal Trade Commission and the courts the power Page 370 U. S. 318 to brake this force at its outset and before it gathered momentum. [Footnote 32]Fourth, and closely related to the third, Congress rejected, as inappropriate to the problem it sought to remedy, the application to § 7 cases of the standards for judging the legality of business combinations adopted by the courts in dealing with cases arising under the Sherman Act, and which may have been applied to some early cases arising under original § 7. [Footnote 33] Page 370 U. S. 319Fifth, at the same time that it sought to create an effective tool for preventing all mergers having demonstrable anticompetitive effects, Congress recognized the stimulation to competition that might flow from particular mergers. When concern as to the Act's breadth was expressed, supporters of the amendments indicated that it would not impede, for example, a merger between two small companies to enable the combination to compete more effectively with larger corporations dominating the relevant market, nor a merger between a corporation which is financially healthy and a failing one which no longer can be a vital competitive factor in the market. [Footnote 34] Page 370 U. S. 320The deletion of the word "community" in the original Act's description of the relevant geographic market is another illustration of Congress' desire to indicate that its concern was with the adverse effects of a given merger on competition only in an economically significant "section" of the country. [Footnote 35] Taken as a whole, the legislative history illuminates congressional concern with the protection of competition, not competitors, and its desire to restrain mergers only to the extent that such combinations may tend to lessen competition.Sixth, Congress neither adopted nor rejected specifically any particular tests for measuring the relevant markets, either as defined in terms of product or in terms of geographic locus of competition, within which the anticompetitive Page 370 U. S. 321 effects of a merger were to be judged. Nor did it adopt a definition of the word "substantially," whether in quantitative terms of sales or assets or market shares or in designated qualitative terms, by which a merger's effects on competition were to be measured. [Footnote 36]Seventh, while providing no definite quantitative or qualitative tests by which enforcement agencies could gauge the effects of a given merger to determine whether it may "substantially" lessen competition or tend toward monopoly, Congress indicated plainly that a merger had to be functionally viewed, in the context of its particular Page 370 U. S. 322 industry. [Footnote 37] That is, whether the consolidation was to take place in an industry that was fragmented, rather than concentrated, that had seen a recent trend toward domination by a few leaders or had remained fairly consistent in its distribution of market shares among the participating companies, that had experienced easy access to markets by suppliers and easy access to suppliers by buyers or had witnessed foreclosure of business, that had witnessed the ready entry of new competition or the erection of barriers to prospective entrants, all were aspects, varying in importance with the merger under consideration, which would properly be taken into account. [Footnote 38] Page 370 U. S. 323Eighth, Congress used the words "may be substantially to lessen competition" (emphasis supplied), to indicate that its concern was with probabilities, not certainties. [Footnote 39] Statutes existed for dealing with clear-cut menaces to competition; no statute was sought for dealing with ephemeral possibilities. Mergers with a probable anticompetitive effect were to be proscribed by this Act.It is against this background that we return to the case before us.IVTHE VERTICAL ASPECTS OF THE MERGEREconomic arrangements between companies standing in a supplier-customer relationship are characterized as "vertical." The primary vice of a vertical merger or other arrangement tying a customer to a supplier is that, Page 370 U. S. 324 by foreclosing the competitors of either party from a segment of the market otherwise open to them, the arrangement may act as a "clog on competition," Standard Oil Co. of California v. United States, 337 U. S. 293, 337 U. S. 314, which "deprive[s] . . . rivals of a fair opportunity to compete." [Footnote 40] H.R.Rep. No. 1191, 81st Cong., 1st Sess. 8. Every extended vertical arrangement, by its very nature, for at least a time, denies to competitors of the supplier the opportunity to compete for part or all of the trade of the customer-party to the vertical arrangement. However, the Clayton Act does not render unlawful all such vertical arrangements, but forbids only those whose effect "may be substantially to lessen competition, or to tend to create a monopoly" "in any line of commerce in any section of the country." Thus, as we have previously noted,"[d]etermination of the relevant market is a necessary predicate to a finding of a violation of the Clayton Act because the threatened monopoly must be one which will substantially lessen competition 'within the area of effective competition.' Substantiality can be determined only in terms of the market affected. [Footnote 41]"The "area of effective competition" must be determined by reference to a product market (the "line of commerce") and a geographic market (the "section of the country"). Page 370 U. S. 325The Product MarketThe outer boundaries of a product market are determined by the reasonable interchangeability of use or the cross-elasticity of demand between the product itself and substitutes for it. [Footnote 42] However, within this broad market, well defined submarkets may exist which, in themselves, constitute product markets for antitrust purposes. United States v. E.I. du Pont de Nemours & Co., 353 U. S. 586, 353 U. S. 593-595. The boundaries of such a submarket may be determined by examining such practical indicia as industry or public recognition of the submarket as a separate economic entity, the product's peculiar characteristics and uses, unique production facilities, distinct customers, distinct prices, sensitivity to price changes, and specialized vendors. [Footnote 43] Because § 7 of the Clayton Act prohibits any merger which may substantially lessen competition "in any line of commerce" (emphasis supplied), it is necessary to examine the effects of a merger in each such economically significant submarket to determine if there is a reasonable probability that the merger will substantially lessen competition. If such a probability is found to exist, the merger is proscribed. [Footnote 44] Page 370 U. S. 326Applying these considerations to the present case, we conclude that the record supports the District Court's finding that the relevant lines of commerce are men's, women's, and children's shoes. These product lines are recognized by the public; each line is manufactured in separate plants; each has characteristics peculiar to itself rendering it generally noncompetitive with the others; and each is, of course, directed toward a distinct class of customers.Appellant, however, contends that the District Court's definitions fail to recognize sufficiently "price/quality" and "age/sex" distinctions in shoes. Brown argues that the predominantly medium-priced shoes which it manufactures occupy a product market different from the predominantly low-priced shoes which Kinney sells. But agreement with that argument would be equivalent to holding that medium-priced shoes do not compete with low-priced shoes. We think the District Court properly found the facts to be otherwise. It would be unrealistic to accept Brown's contention that, for example, men's shoes selling below $8.99 are in a different product market from those selling above.$9.00.This is not to say, however, that "price/quality" differences, where they exist, are unimportant in analyzing a merger; they may be of importance in determining the likely effect of a merger. But the boundaries of the relevant market must be drawn with sufficient breadth to include the competing products of each of the merging companies and to recognize competition where, in fact, competition exists. Thus, we agree with the District Court that, in this case, a further division of product lines based on "price/quality" differences would be "unrealistic." Page 370 U. S. 327Brown's contention that the District Court's product market definitions should have recognized further "age/sex" distinctions raises a different problem. Brown's sharpest criticism is directed at the District Court's finding that children's shoes constituted a single line of commerce. Brown argues, for example, that "a little boy does not wear a little girl's black patent leather pump," and that "[a] male baby cannot wear a growing boy's shoes." Thus, Brown argues that "infants' and babies'" shoes, "misses' and children's'" shoes and "youths' and boys'" shoes should each have been considered a separate line of commerce. Assuming, arguendo, that little boys' shoes, for example, do have sufficient peculiar characteristics to constitute one of the markets to be used in analyzing the effects of this merger, we do not think that in this case the District Court was required to employ finer "age/sex" distinctions then those recognized by its classifications of "men's," "women's," and "children's" shoes. Further division does not aid us in analyzing the effects of this merger. Brown manufactures about the same percentage of the Nation's children's shoes (5.8%) as it does of the Nation's youths' and boys' shoes (6.5%), of the Nation's misses' and children's shoes (6.0%) and of the Nation's infants' and babies' shoes (4.9%). Similarly, Kinney sells about the same percentage of the Nation's children's shoes (2%) as it does of the Nation's youths' and boys' shoes (3.1%), of the Nation's misses' and children's shoes (1.9%), and of the Nation's infants' and babies' shoes (1.5%). Appellant can point to no advantage it would enjoy were finer divisions than those chosen by the District Court employed. Brown manufactures significant, comparable quantities of virtually every type of nonrubber men's, women's, and children's shoes, and Kinney sells such quantities of virtually every type of men's, women's, and children's shoes. Thus, whether considered separately or together, the picture of this Page 370 U. S. 328 merger is the same. We therefore agree with the District Court's conclusion that, in the setting of this case, to subdivide the shoe market further on the basis of "age/sex" distinctions would be "impractical" and "unwarranted."The Geographic MarketWe agree with the parties and the District Court that, insofar as the vertical aspect of this merger is concerned, the relevant geographic market is the entire Nation. The relationships of product value, bulk, weight and consumer demand enable manufacturers to distribute their shoes on a nationwide basis, as Brown and Kinney, in fact, do. The anticompetitive effects of the merger are to be measured within this range of distribution.The Probable Effect of the MergerOnce the area of effective competition affected by a vertical arrangement has been defined, an analysis must be made to determine if the effect of the arrangement "may be substantially to lessen competition, or to tend to create a monopoly" in this market.Since the diminution of the vigor of competition which may stem from a vertical arrangement results primarily from a foreclosure of a share of the market otherwise open to competitors, an important consideration in determining whether the effect of a vertical arrangement "may be substantially to lessen competition, or to tend to create a monopoly" is the size of the share of the market foreclosed. However, this factor will seldom be determinative. If the share of the market foreclosed is so large that it approaches monopoly proportions, the Clayton Act will, of course, have been violated; but the arrangement will also have run afoul of the Sherman Act. [Footnote 45] And the legislative history of § 7 indicates clearly that the Page 370 U. S. 329 tests for measuring the legality of any particular economic arrangement under the Clayton Act are to be less stringent than those used in applying the Sherman Act. [Footnote 46] On the other hand, foreclosure of a de minimis share of the market will not tend "substantially to lessen competition."Between these extremes, in cases such as the one before us, in which the foreclosure is neither of monopoly nor de minimis proportions, the percentage of the market foreclosed by the vertical arrangement cannot itself be decisive. In such cases, it becomes necessary to undertake an examination of various economic and historical factors in order to determine whether the arrangement under review is of the type Congress sought to proscribe. [Footnote 47]A most important such factor to examine is the very nature and purpose of the arrangement. [Footnote 48] Congress not only indicated that"the tests of illegality [under § 7] are intended to be similar to those which the courts have applied in interpreting the same language as used in other sections of the Clayton Act, [Footnote 49]"but also chose for § 7 language virtually identical to that of § 3 of the Clayton Act, 15 U.S.C. § 14, which had been interpreted by this Court to require an examination of the interdependence of the market share foreclosed by, and the economic purpose of, the vertical arrangement. Thus, for example, if a particular vertical arrangement, considered under § 3, appears to be a limited term exclusive dealing contract, Page 370 U. S. 330 the market foreclosure must generally be significantly greater than if the arrangement is a tying contract before the arrangement will be held to have violated the Act. Compare Tampa Electric Co. v. Nashville Coal Co., 365 U. S. 320, and Standard Oil Co. of California v. United States, supra, with International Salt Co. v. United States, 332 U. S. 392. [Footnote 50] The reason for this is readily discernible. The usual tying contract forces the customer to take a product or brand he does not necessarily want in order to secure one which he does desire. Because such an arrangement is inherently anticompetitive, we have held that its use by an established company is likely "substantially to lessen competition" although only a relatively small amount of commerce is affected. International Salt Co. v. United States, supra. Thus, unless the tying device is employed by a small company in an attempt to break into a market, cf. Harley-Davidson Motor Co., 50 F.T.C. 1047, 1066, the use of a tying device can rarely [Footnote 51] be harmonized with the strictures of the antitrust laws, which are intended primarily to preserve and stimulate competition. See Standard Oil Co. of California v. United States, supra, 337 U.S. at 337 U. S. 305-306. On the other hand, requirement contracts are frequently negotiated at the behest of the customer who has chosen the particular supplier and his product upon the basis of competitive merit. See, e.g., Tampa Electric Co. v. Nashville Coal Co., supra. Of course, the fact that requirement contracts are not inherently anticompetitive will not save a particular agreement if, in fact, it is likely "substantially to lessen competition, or to tend to create a monopoly." E.g., Standard Oil Co. of California v. United States, supra. Yet a requirement contract may escape censure if only a Page 370 U. S. 331 small share of the market is involved, if the purpose of the agreement is to insure to the customer a sufficient supply of a commodity vital to the customer's trade or to insure to the supplier a market for his output and if there is no trend toward concentration in the industry. Tampa Electric Co. v. Nashville Coal Co., supra. Similar considerations are pertinent to a judgment under § 7 of the Act.The importance which Congress attached to economic purpose is further demonstrated by the Senate and House Reports on H.R. 2734, which evince an intention to preserve the "failing company" doctrine of International Shoe Co. v. Federal Trade Comm'n, 280 U. S. 291. [Footnote 52] Similarly, Congress foresaw that the merger of two large companies or a large and a small company might violate the Clayton Act while the merger of two small companies might not, although the share of the market foreclosed be identical, if the purpose of the small companies is to enable them in combination to compete with larger corporations dominating the market. [Footnote 53]The present merger involved neither small companies nor failing companies. In 1955, the date of this merger, Brown was the fourth largest manufacturer in the shoe industry, with sales of approximately 26 million pairs of shoes and assets of over $72,000,000 while Kinney had sales of about 8 million pairs of shoes and assets of about $18,000,000. Not only was Brown one of the leading manufacturers of men's, women's, and children's shoes, but Kinney, with over 350 retail outlets, owned and operated the largest independent chain of family shoe stores in the Nation. Thus, in this industry, no merger between Page 370 U. S. 332 a manufacturer and an independent retailer could involve a larger potential market foreclosure. Moreover, it is apparent both from past behavior of Brown and from the testimony of Brown's President [Footnote 54] that Brown would use its ownership of Kinney to force Brown shoes into Kinney stores. Thus, in operation, this vertical arrangement would be quite analogous to one involving a tying clause. [Footnote 55]Another important factor to consider is the trend toward concentration in the industry. [Footnote 56] It is true, of course, that the statute prohibits a given merger only if the effect of that merger may be substantially to lessen competition. [Footnote 57] But the very wording of § 7 requires a prognosis of the probable future effect of the merger. [Footnote 58]The existence of a trend toward vertical integration, which the District Court found, is well substantiated by the record. Moreover, the court found a tendency of the acquiring manufacturers to become increasingly important sources of supply for their acquired outlets. The necessary corollary of these trends is the foreclosure of independent manufacturers from markets otherwise open to them. And because these trends are not the product of accident, but are rather the result of deliberate policies of Brown and other leading shoe manufacturers, account must be taken of these facts in order to predict the probable Page 370 U. S. 333 future consequences of this merger. It is against this background of continuing concentration that the present merger must be viewed.Brown argues, however, that the shoe industry is at present composed of a large number of manufacturers and retailers, and that the industry is dynamically competitive. But remaining vigor cannot immunize a merger if the trend in that industry is toward oligopoly. See Pillsbury Mills, Inc., 50 F.T.C. 555, 573. It is the probable effect of the merger upon the future, as well as the present, which the Clayton Act commands the courts and the Commission to examine. [Footnote 59]Moreover, as we have remarked above, not only must we consider the probable effects of the merger upon the economics of the particular markets affected, but also we must consider its probable effects upon the economic way of life sought to be preserved by Congress. [Footnote 60] Congress was desirous of preventing the formation of further oligopolies with their attendant adverse effects upon local control of industry and upon small business. Where an industry was composed of numerous independent units, Congress appeared anxious to preserve this structure. The Senate Report, quoting with approval from the Federal Trade Commission's 1948 report on the merger movement, states explicitly that amended § 7 is addressed, inter alia, to the following problem:"Under the Sherman Act, an acquisition is unlawful if it creates a monopoly or constitutes an attempt to monopolize. Imminent monopoly may appear when one large concern acquires another, but it is unlikely to be perceived in a small acquisition by a large enterprise. As a large concern grows through a series of such small acquisitions, its accretions of Page 370 U. S. 334 power are individually so minute as to make it difficult to use the Sherman Act tests against them. . . .""Where several large enterprises are extending their power by successive small acquisitions, the cumulative effect of their purchases may be to convert an industry from one of intense competition among many enterprises to one in which three or four large concerns produce the entire supply."S.Rep. No. 1775, 81st Cong., 2d Sess. 5, U.S.Code Cong. and Adm.News 1950, p. 4297. [Footnote 61] And see H.R.Rep. No. 1191, 81st Cong., 1st Sess. 8.The District Court's findings, and the record facts, many of them set forth in Part I of this opinion, convince us that the shoe industry is being subjected to just such a cumulative series of vertical mergers which, if left unchecked, will be likely "substantially to lessen competition."We reach this conclusion because the trend toward vertical integration in the shoe industry, when combined with Brown's avowed policy of forcing its own shoes upon its retail subsidiaries, may foreclose competition from a substantial share of the markets for men's, women's, and children's shoes, without producing any countervailing competitive, economic, or social advantages.VTHE HORIZONTAL ASPECTS OF THE MERGERAn economic arrangement between companies performing similar functions in the production or sale of comparable goods or services is characterized as "horizontal." The effect on competition of such an arrangement depends, of course, upon its character and scope. Thus, its validity in the face of the antitrust laws will depend upon such factors as: the relative size and number of the Page 370 U. S. 335 parties to the arrangement; whether it allocates shares of the market among the parties; whether it fixes prices at which the parties will sell their product; or whether it absorbs or insulates competitors. [Footnote 62] Where the arrangement effects a horizontal merger between companies occupying the same product and geographic market, whatever competition previously may have existed in that market between the parties to the merger is eliminated. Section 7 of the Clayton Act, prior to its amendment, focused upon this aspect of horizontal combinations by proscribing acquisitions which might result in a lessening of competition between the acquiring and the acquired companies. [Footnote 63] The 1950 amendments made plain Congress' intent that the validity of such combinations was to be gauged on a broader scale: their effect on competition generally in an economically significant market.Thus, again, the proper definition of the market is a "necessary predicate" to an examination of the competition that may be affected by the horizontal aspects of the merger. The acquisition of Kinney by Brown resulted in a horizontal combination at both the manufacturing and retailing levels of their businesses. Although the District Court found that the merger of Brown's and Kinney's manufacturing facilities was economically too insignificant to come within the prohibitions of the Clayton Act, the Government has not appealed from this portion of the lower court's decision. Therefore, we have no occasion to express our views with respect to that finding. On the other hand, appellant does contest the District Court's finding that the merger of the companies' retail outlets may tend substantially to lessen competition. Page 370 U. S. 336The Product MarketShoes are sold in the United States in retail shoe stores and in shoe departments of general stores. These outlets sell: (1) men's shoes, (2) women's shoes, (3) women's or children's shoes, or (4) men's, women's or children's shoes. Prior to the merger, both Brown and Kinney sold their shoes in competition with one another through the enumerated kinds of outlets characteristic of the industry.In Part IV of this opinion we hold that the District Court correctly defined men's, women's, and children's shoes as the relevant lines of commerce in which to analyze the vertical aspects of the merger. For the reasons there stated, we also hold that the same lines of commerce are appropriate for considering the horizontal aspects of the merger.The Geographic MarketThe criteria to be used in determining the appropriate geographic market are essentially similar to those used to determine the relevant product market. See S.Rep. No.1775, 81st Cong., 2d Sess. 5-6; United States v. E.I. du Pont de Nemours & Co., 353 U. S. 586, 353 U. S. 593. Moreover, just as a product submarket may have § 7 significance as the proper "line of commerce," so may a geographic submarket be considered the appropriate "section of the country." Erie Sand & Gravel Co. v. Federal Trade Comm'n, 291 F.2d 279, 283 (C.A.3d Cir.); United States v. Bethlehem Steel Corp., 168 F. Supp. 576, 595-603 (D.C.S.D.N.Y.). Congress prescribed a pragmatic, factual approach to the definition of the relevant market, and not a formal, legalistic one. The geographic market selected must, therefore, both "correspond to the commercial realities" [Footnote 64] of the industry and be economically Page 370 U. S. 337 significant. Thus, although the geographic market in some instances may encompass the entire Nation, under other circumstances, it may be as small as a single metropolitan area. United States v. Columbia Pictures Corp., 189 F. Supp. 153, 193-194 (D.C.S.D.N.Y.); United States v. Maryland & Virginia Milk Producers Ass'n, 167 F. Supp. 799 (D.C.D.C.), aff'd, 362 U. S. 362 U.S. 458. The fact that two merging firms have competed directly on the horizontal level in but a fraction of the geographic markets in which either has operated, does not, in itself, place their merger outside the scope of § 7. That section speaks of "any . . . section of the country," and if anticompetitive effects of a merger are probable in "any" significant market, the merger at least to that extent is proscribed. [Footnote 65]The parties do not dispute the findings of the District Court that the Nation as a whole is the relevant geographic market for measuring the anticompetitive effects of the merger viewed vertically or of the horizontal merger of Brown's and Kinney's manufacturing facilities. As to the retail level, however, they disagree.The District Court found that the effects of this aspect of the merger must be analyzed in every city with a population exceeding 10,000 and its immediate contiguous surrounding territory in which both Brown and Kinney sold shoes at retail through stores they either owned or controlled. [Footnote 66] By this definition of the geographic market, Page 370 U. S. 338 less than one-half of all the cities in which either Brown or Kinney sold shoes through such outlets are represented. The appellant recognizes that, if the District Court's characterization of the relevant market is proper, the number of markets in which both Brown and Kinney have outlets is sufficiently numerous so that the validity of the entire merger is properly judged by testing its effects in those markets. However, it is appellant's contention that the areas of effective competition in shoe retailing were improperly defined by the District Court. It claims that such areas should, in some cases, be defined so as to include only the central business districts of large cities, and in others, so as to encompass the "standard metropolitan areas" within which smaller communities are found. It argues that any test failing to distinguish between these competitive situations is improper.We believe, however, that the record fully supports the District Court's findings that shoe stores in the outskirts of cities compete effectively with stores in central Page 370 U. S. 339 downtown areas, and that, while there is undoubtedly some commercial intercourse between smaller communities within a single "standard metropolitan area," the most intense and important competition in retail sales will be confined to stores within the particular communities in such an area and their immediate environs. [Footnote 67]We therefore agree that the District Court properly defined the relevant geographic markets in which to analyze this merger as those cities with a population exceeding 10,000 and their environs in which both Brown and Kinney retailed shoes through their own outlets. Such markets are large enough to include the downtown shops and suburban shopping centers in areas contiguous to the city, which are the important competitive factors, and yet are small enough to exclude stores beyond the immediate environs of the city, which are of little competitive significance.The Probable Effect of the MergerHaving delineated the product and geographic markets within which the effects of this merger are to be measured, we turn to an examination of the District Court's finding that as a result of the merger competition in the retailing of men's, women's, and children's shoes may be lessened substantially in those cities in which both Brown and Kinney stores are located. We note, initially, that appellant challenges this finding on a number of grounds other than those discussed above, and on grounds independent of the critical question of whether competition may, in fact, be lessened. Thus, Brown objects that the District Court did not examine the competitive picture in each line of commerce and each section of the country it had defined as appropriate. It says the Court erred in failing to enter findings with respect to each relevant city assessing Page 370 U. S. 340 the anticompetitive effect of the merger on the retail sale, of, for example, men's shoes in Council Bluffs, men's shoes in Texas City, women's shoes in Texas City and children's shoes in St. Paul. Even assuming a representative sample could properly be used, Brown also objects that the District Court's detailed analysis of competition in shoe retailing was limited to a single city St. Louis -- a city in which Kinney did not operate. The appellant says this analysis could not be sufficiently representative to establish a standard image of the shoe trade which could be applied to each of the more than 100 cities in which Brown and Kinney sold shoes, particularly as some of those cities were much smaller than St. Louis, others were larger, some were in different climates, and others were in areas having different median per capita incomes.However, we believe the record is adequate to support the findings of the District Court. While it is true that the court concentrated its attention on the structure of competition in the city in which it sat and as to which detailed evidence was most readily available, it also heard witnesses from no less than 40 other cities in which the parties to the merger operated. The court was careful to point out that it was on the basis of all the evidence that it reached its conclusions concerning the boundaries of the relevant markets and the merger's effects on competition within them. We recognize that variations of size climate and wealth as enumerated by Brown exist in the relevant markets. However, we agree with the court below that the markets with respect to which evidence was received provide a fair sampling of all the areas in which the impact of this merger is to be measured. The appellant has not shown how the variables it has mentioned could affect the structure of competition within any particular market so as to require a change in the conclusions drawn by the District Court. Each competitor within a given market is equally affected by these factors, even though the city in which he does business Page 370 U. S. 341 may differ from St. Louis in size, climate or wealth. Thus, we believe the District Court properly reached its conclusions on the basis of the evidence available to it. There is no reason to protract already complex antitrust litigation by detailed analyses of peripheral economic facts, if the basic issues of the case may be determined through study of a fair sample. [Footnote 68]In the case before us, not only was a fair sample used to demonstrate the soundness of the District Court's conclusions, but evidence of record fully substantiates those findings as to each relevant market. An analysis of undisputed statistics of sales of shoes in the cities in which both Brown and Kinney all shoes at retail, separated into the appropriate lines of commerce, provides a persuasive factual foundation upon which the required prognosis of the merger's effects may be built. Although Brown objects to some details in the Government's computation used in drafting these exhibits, appellant cannot deny the correctness of the more general picture they reveal. [Footnote 69] We have appended the exhibits to this opinion. Page 370 U. S. 342 They show, for example, that, during 1955, in 32 separate cities ranging in size and location from Topeka, Kansas, to Batavia, New York, and Hobbs, New Mexico, the combined Page 370 U. S. 343 share of Brown and Kinney sales of women's shoes (by unit volume) exceeded 20%. [Footnote 70] In 31 cities -- some the same as those used in measuring the effect of the merger in the women's line -- the combined share of children's shoes sales exceeded 20%; in 6 cities, their share exceeded 40%. In Dodge City, Kansas, their combined share of the market for women's shoes was over 57%; their share of the children's shoe market in that city was 49%. In the 7 cities in which Brown's and Kinney's combined shares of the market for women's shoes were greatest (ranging from 33% to 57%), each of the parties alone, prior to the merger, had captured substantial portions of those markets (ranging from 13% to 34%); the merger intensified this existing concentration. In 118 separate cities, the combined shares of the market of Brown and Kinney in the sale of one of the relevant lines of commerce exceeded 5%. In 47 cities, their share exceeded 5% in all three lines.The market share which companies may control by merging is one of the most important factors to be considered when determining the probable effects of the combination on effective competition in the relevant market. [Footnote 71] In an industry as fragmented as shoe retailing, the control of substantial shares of the trade in a city may have important effects on competition. If a merger achieving Page 370 U. S. 344 5% control were now approved, we might be required to approve future merger efforts by Brown's competitors seeking similar market shares. The oligopoly Congress sought to avoid would then be furthered, and it would be difficult to dissolve the combinations previously approved. Furthermore, in this fragmented industry, even if the combination controls but a small share of a particular market, the fact that this share is held by a large national chain can adversely affect competition. Testimony in the record from numerous independent retailers, based on their actual experience in the market, demonstrates that a strong national chain of stores can insulate selected outlets from the vagaries of competition in particular locations, and that the large chains can set and alter styles in footwear to an extent that renders the independents unable to maintain competitive inventories. A third significant aspect of this merger is that it creates a large national chain which is integrated with a manufacturing operation. The retail outlets of integrated companies, by eliminating wholesalers and by increasing the volume of purchases from the manufacturing division of the enterprise, can market their own brands at prices below those of competing independent retailers. Of course, some of the results of large integrated or chain operations are beneficial to consumers. Their expansion is not rendered unlawful by the mere fact that small independent stores may be adversely affected. It is competition, not competitors, which the Act protects. But we cannot fail to recognize Congress' desire to promote competition through the protection of viable, small, locally owned business. Congress appreciated that occasional higher costs and prices might result from the maintenance of fragmented industries and markets. It resolved these competing considerations in favor of decentralization. We must give effect to that decision.Other factors to be considered in evaluating the probable effects of a merger in the relevant market lend additional Page 370 U. S. 345 support to the District Court's conclusion that this merger may substantially lessen competition. One such factor is the history of tendency toward concentration in the industry. [Footnote 72] As we have previously pointed out, the shoe industry has, in recent years, been a prime example of such a trend. Most combinations have been between manufacturers and retailers, as each of the larger producers has sought to capture an increasing number of assured outlets for its wares. Although these mergers have been primarily vertical in their aim and effect, to the extent that they have brought ever greater numbers of retail outlets within fewer and fewer hands, they have had an additional important impact on the horizontal plane. By the merger in this case, the largest single group of retail stores still independent of one of the large manufacturers was absorbed into an already substantial aggregation of more or less controlled retail outlets. As a result of this merger, Brown moved into second place nationally in terms of retail stores directly owned. Including the stores on its franchise plan, the merger placed under Brown's control almost 1,600 shoe outlets, or about 7.2% of the Nation's retail "shoe stores" as defined by the Census Bureau, [Footnote 73] and 2.3% of the Nation's total retail Page 370 U. S. 346 shoe outlets. [Footnote 74] We cannot avoid the mandate of Congress that tendencies toward concentration in industry are to be curbed in their incipiency, particularly when those tendencies are being accelerated through giant steps striding across a hundred cities at a time. In the light of the trends in this industry, we agree with the Government and the court below that this is an appropriate place at which to call a halt.At the same time, appellant has presented no mitigating factors, such as the business failure or the inadequate resources of one of the parties that may have prevented it from maintaining its competitive position, nor a demonstrated need for combination to enable small companies to enter into a more meaningful competition with those dominating the relevant markets. On the basis of the record before us, we believe the Government sustained its burden of proof. We hold that the District Court was correct in concluding that this merger may tend to lessen competition substantially in the retail sale of men's, women's, and children's shoes in the overwhelming majority of those cities and their environs in which both Brown and Kinney sell through owned or controlled outlets.The judgment isAffirmed

U.S. Supreme CourtBrown Shoe Co., Inc. v. United States, 370 U.S. 294 (1962)Brown Shoe Co., Inc. v. United StatesNo. 4Argued December 6, 1961Decided June 25, 1962370 U.S. 294SyllabusThe Government brought suit to enjoin consummation of a merger of two corporations on the ground that its effect might be substantially to lessen competition or to tend to create a monopoly in the production, distribution and sale of shoes, in violation of § 7 of the Clayton Act, as amended in 1950. The District Court found that the merger would increase concentration in the shoe industry, both in manufacturing and retailing, eliminate one of the corporations as a substantial competitor in the retail field, and establish a manufacturer-retailer relationship which would deprive all but the top firms in the industry of a fair opportunity to compete, and that, therefore, it probably would result in a further substantial lessening of competition and an increased tendency toward monopoly. It enjoined appellant from having or acquiring any further interest in the business, stock, or assets of the other corporation, required full divestiture by appellant of the other corporation's stock and assets, and ordered appellant to propose in the immediate future a plan for carrying into effect the Court's order of divestiture.Held: The judgment is affirmed. Pp. 370 U. S. 296-346.1. The District Court's judgment was a "final" judgment within the meaning of § 2 of the Expediting Act, and this Court has jurisdiction of this direct appeal under that Act. Pp. 370 U. S. 304-311.2. The legislative history of the 1950 amendments to § 7 of the Clayton Act indicates that Congress provided no definite quantitative or qualitative tests by which enforcement agencies were to gauge the effects of a given merger, but rather that Congress intended that a variety of economic and other factors be considered in determining whether the merger was consistent with maintaining competition in the industry in which the merging companies operated. Pp. 370 U. S. 311-323.3. The record supports the District Court's findings and its conclusion that the shoe industry is being subjected to a cumulative series of vertical mergers which, if left unchecked, may substantially lessen competition within the meaning of § 7, as amended. Pp. 370 U. S. 323-334. Page 370 U. S. 295(a) The record in this case supports the District Court's finding that the relevant lines of commerce are men's, women's, and children's shoes. Pp. 370 U. S. 325-326.(b) The District Court properly found that the predominantly medium-priced shoes which appellant manufactures do not occupy a product market different from the predominantly low-priced shoes which the other corporation sells. P. 370 U. S. 326.(c) In defining the product market, the District Court was not required to employ finer "price/quality" or "age/sex" distinctions than those recognized by its classifications of "men's," "women's," and "children's" shoes. Pp. 370 U. S. 326-328.(d) Insofar as the vertical aspect of this merger is concerned, the relevant geographic market is the entire Nation, and the anticompetitive effects of the merger are to be measured within that range of distribution. P. 370 U. S. 328.(e) The trend toward vertical integration in the shoe industry, when combined with appellant's avowed policy of forcing its own shoes upon its retail subsidiaries, seems likely to foreclose competition from a substantial share of the markets for men's, women's, and children's shoes, without producing any countervailing competitive, economic, or social advantages. Pp. 370 U. S. 328-334.4. The District Court was correct in concluding that this merger may tend to lessen competition substantially in the retail sale of men's, women's, and children's shoes in the overwhelming majority of the cities and their environs in which both corporations sell through owned or controlled outlets. Pp. 370 U. S. 334-346.(a) The District Court correctly defined men's, women's, and children's shoes as the relevant lines of commerce in which to analyze the horizontal aspects of the merger. P. 370 U. S. 336.(b) The District Court properly defined the relevant geographic markets in which to analyze the horizontal aspects of this merger as those cities with populations exceeding 10,000 and their environs in which both corporations retailed shoes through their own or controlled outlets. Pp. 370 U. S. 336-339.(c) The evidence is adequate to support the finding of the District Court that, as a result of the merger, competition in the retailing of men's, women's, and children's shoes may be lessened substantially in those cities. Pp. 370 U. S. 339-346.179 F. Supp. 721, affirmed. Page 370 U. S. 296

1955_6

Opinion of the Court by MR. JUSTICE HARLAN, announced by MR. JUSTICE CLARK.These cases involve the validity of railroad tariff provisions exonerating the appellee railroads from liability for stated percentages of damage to shell eggs shipped over their lines. The cases come to us by direct appeal [Footnote 1] from a judgment of a three-judge district court in Utah [Footnote 2] which dismissed an action brought to set aside and enjoin an order of the Interstate Commerce Commission [Footnote 3] approving such tariff provisions. We noted probable jurisdiction on October 14, 1954. [Footnote 4]Claims against the railroads for damage to egg shipments steadily and rapidly increased in the years following 1939, particularly on shipments to the eastern seaboard area. [Footnote 5] In 1950, the railroads, believing that, because of the difficulties of proof, they were being exposed to liability for damage for which they were not responsible, filed with the Commission proposed tariff provisions similar in form to those approved by the order under review. After an investigation and hearing, [Footnote 6] the Commission concluded Page 350 U. S. 164 that egg shipments ordinarily contained substantial amounts of damage for which the railroads were not responsible -- namely, (a) damage existing prior to shipment, and (b) damage unavoidably arising in transit because of the inherently fragile nature of eggs. The average amount of such damage was found to be 3% for eggs packaged at railhead points and 5% for those packaged elsewhere. On the basis of this finding, the Commission, although rejecting the higher percentage provisions proposed by the railroads, [Footnote 7] found reasonable -- and hence authorized the railroads to include in their tariff schedules [Footnote 8] -- the following tolerance provision:"On eggs placed in packages at rail point of origin of the shipment, no claim shall be allowed where the physical damage to the eggs at destination does not exceed 3% of the contents of the packages containing damaged eggs. Where damage exceeds 3%, claims shall be allowed for all damage in excess of 3% if investigation develops carrier liability.""Exception. -- Where bona fide certificates of Federal or State egg inspection agencies showing extent of physical damage to eggs determined at rail point of origin of the shipment immediately prior to tender for rail transportation indicate the actual shell damage to be other than 2%, the percentage of actual damage as shown on such certificates, plus 1% shall be used in lieu of 3% specified in this Section."An otherwise identical provision applicable to "eggs placed in packages at points other than the rail point of Page 350 U. S. 165 origin" was determined to be reasonable with a tolerance of 5%.It is claimed that these tariff provisions violate § 20(11) of the Interstate Commerce Act, 24 Stat. 386, as amended, 49 U.S.C. § 20(11), which provides that any common carrier subject to the Act receiving property for interstate transportation"shall be liable . . . for any loss, damage, or injury to such property caused by it . . . , and no contract, receipt, rule, regulation, or other limitation of any character whatsoever shall exempt such common carrier . . . from the liability hereby imposed. . . ."The Commission and the court below (one judge dissenting) held that the tolerance provisions did not violate § 20(11) because the pre-shipment and unavoidably-caused damage represented by the tolerances was not damage "caused by" the railroads; hence, the tolerance regulations, in providing a means for determining the extent of such damage, did not limit the railroads' proper liability, but operated simply to eliminate from damage claims the damage for which the railroads were not liable.The appellants attack the provisions on six principal grounds: (1) the Commission has no jurisdiction over damage claims, and hence no power to prescribe regulations governing their disposition; (2) tolerances based on averages necessarily embrace a forbidden limitation of liability since, by definition, some shipments will contain less than the "average" damage, resulting in those cases in the carrier being relieved of its full liability; (3) the railroads are liable for in-transit damage even though "unavoidable"; [Footnote 9] (4) the averages found by the Commission are not supported by the evidence; (5) the approval of uniform nationwide tolerances was unreasonable in light Page 350 U. S. 166 of the wide differences in the egg damage experience of consignees located in different areas of the country; [Footnote 10] and (6) the conclusion that the tolerances do not limit liability is not supported by the Commission's findings. Our agreement with this last contention makes it unnecessary for us to consider the other arguments, and we may assume, though we do not decide, that the tariff provisions are not invalid for any of the other reasons assigned.The Commission's justification of the tolerance regulations as not limiting liability rests upon two distinct propositions: (1) that there is present in every case of eggs at destination physical damage not "caused by" the railroads -- and hence for which they are not liable under § 20(11) -- in the amount of the specified percentages; and (2) that the deduction of those percentages from damage claims operates merely to prevent liability for such damage from being improperly imposed on the railroads. We Page 350 U. S. 167 shall accept for purposes of discussion the validity of the first proposition. The infirmity we find in the Commission's report is, rather, that the second proposition is simply assumed, and is supported by no findings upon which we can say that the Commission's conclusion was reasonably based. Such a conclusion being essential to remove the tolerance provisions from the prohibition of § 20(11), the lack of findings necessary to justify that conclusion renders invalid the Commission's order approving the tolerance regulations. See Florida v. United States, 282 U. S. 194, 282 U. S. 215. Indeed, so far does the report fail to support the Commission's conclusion that it tends affirmatively to support precisely the opposite conclusion -- namely, that the tolerances do unlawfully limit liability. We know of no better way to illustrate the inadequacies of the report than by showing the manner in which the inferences raised by it and unanswered by the Commission would, if accepted, lead to that opposing conclusion.In the first place, we are unable to discover in the report any showing that damage claims include -- or should reasonably be deemed to include -- the exempt damage which is to be deducted from them. At common law, proof that a case of eggs contained a specified amount of damage for which the carrier was not liable would afford no defense to a damage claim not shown to include that damage. To complete the defense, some showing that the damage claimed included the exempt damage would be required, such as evidence that all of the damage had been found and claimed. Similarly, to justify a regulation authorizing the deduction from damage claims of a tolerance representing exempt damage, some basis for inferring that damage claims ordinarily include such damage would seem required, such as a finding that the type of inspection upon which damage claims are based is adequate to reveal substantially all the damage present in a case. Page 350 U. S. 168Far from making such a finding, however, the Commission report indicates that damage claims normally do not include all the damage present in a case. As described by the Commission, the customary inspection at destination upon which damage claims are based is simply a visual examination of a layer of 36 eggs at a time, continuing only until a layer in the case with no visible damage is found, at which point none of the succeeding layers is even looked at. [Footnote 11] Inasmuch as "damage" of the sort represented by the tolerances includes even the most minor shell imperfections, the inference seems inevitable that much damage is overlooked. This inference is strengthened by the Commission's statement that much of the damage normally present in a case could be found only "by candling and clicking, and could not be detected by the kind of inspection performed at" destination. [Footnote 12] And that damage claims do not in practice include all damage is further indicated by the Department of Agriculture studies cited by the Commission in which the damage overlooked by customary inspections at destination was found to range between 3.6% and 7.3%. [Footnote 13] Indeed, if the inferences suggested by these latter studies be accepted, it Page 350 U. S. 169 would appear that there is ordinarily overlooked in the destination inspection -- and hence not included in damage claims -- physical damage nearly equal to or greater than the exempt damage represented by the tolerances. If that be true, a further reduction of the claim by the full amount of the tolerance would necessarily operate to "limit" liability by approximately the full amount of the tolerance.Nor is it an answer to this that the consignee is entitled to make a more thorough inspection than the prevailing practice entails. By in effect requiring a consignee to prove that his damage claim does not include the exempt damage, the tolerances would impose on the consignee the burden of disproving a defense which at common law it would be the carrier's burden to establish. Whether or not the Commission has power so to alter the burden of proof, there is nothing to indicate that it had any intention of doing so. The Commission seems to have believed that, under the prevailing commercial practices, the carriers were being exposed to an improper liability, and that the tolerances, applied in the same commercial setting, would do no more than remedy that situation. It would pervert the Commission's purpose to deal realistically with a commercial problem now to seek to justify the tolerances on the ground that it is technically possible for consignees, by departing from the normal commercial practices, to avoid the limitation of liability caused by the tolerances. Especially is this true in the absence of any suggestion in the Commission's report that such a complete inspection by consignees would be commercially feasible. [Footnote 14] Page 350 U. S. 170Another inadequacy of the Commission's report arises from its failure to distinguish between different kinds of physical damage in the application of the tolerances. The most favorable evidence supporting the Commission's conclusions as to the extent of the damage not "caused by" the railroads was a Department of Agriculture study showing that, at destination, the average case of eggs contains 4.8% "checked" or "stained" eggs and 0.3% broken eggs. [Footnote 15] Presumably, therefore, the tolerances approved by the Commission represent physical damage in the same proportions -- that is, primarily checked and stained eggs with only a nominal percentage of broken eggs. Checked and stained eggs are salable at a reduced price, and therefore, unlike broken eggs, represent only a partial loss. The tariff provisions, however, do not differentiate between these types of damage, and apparently authorize the deduction of the full tolerance without regard to the nature of the damage claimed. But to permit the offsetting of checked and stained eggs, representing only a partial loss, against broken eggs, representing a total loss, would seem necessarily to limit the railroads' proper liability under § 20(11).A third major respect in which the Commission's report falls short of establishing that the tolerances will not limit Page 350 U. S. 171 liability results from its failure to consider the relationship between the physical damage represented by the tolerances and the legal loss for which damage claims are asserted. We have thus far assumed that "physical damage" could properly be equated with "loss," and have shown that, even on that assumption, the Commission has not shown the existence of a relationship between the damage represented by the tolerances and that included in damage claims which would justify the deduction authorized by the tariff provisions. In fact, however, it would appear that damage claims are based not on physical damage to individual eggs, but rather on the loss of commercial acceptability of a case of eggs as a whole. As the Commission observed, the "commercially sound" case of eggs invariably contains some damage, [Footnote 16] and it is apparently only when the damage is so great as to make a case commercially unacceptable for its grade that it loses value. When a commercially unsound case is received, the consignee, rather than suffer the presumably greater loss that would result from selling it at a lower grade or as salvage, ordinarily "reconditions" the case by replacing the visibly damaged eggs and, if necessary, the packaging materials. From the character of this process as described by the Commission, [Footnote 17] it is apparent that the purpose is simply to make the case commercially sound, and not to discover and remove all the damage present in the case. The damage claim, if liability is asserted against the carrier, then consists simply of the cost of reconditioning the case -- that is, the labor and material costs plus the loss on the damaged eggs removed. [Footnote 18] Page 350 U. S. 172Viewed in the above terms, the probable effect of the tolerances on liability becomes even more apparent. Inasmuch as the highest grade specifications prescribed by the Department of Agriculture permit physical damage of 5%, [Footnote 19] a case of eggs received at destination with only the tolerance damage of 3% or 5% would presumably be considered "commercially sound" and be salable at the full price. Thus, it would seem that presence of the tolerance damage, by itself, causes the consignee no loss and affords no basis for a damage claim, and that it is only when there is additional damage, making it necessary to recondition the case to make it commercially sound, that there is a loss for which a claim may be asserted. And if the additional damage is caused by the railroad, it necessarily follows that the cost of the reconditioning made necessary only because of that damage is a loss "caused by" the railroad within § 20(11). [Footnote 20] Any reduction of the damage claim in such circumstances would thus relieve the carrier of its proper liability.The Commission's report thus leaves us not merely with uncertainty as to the impact of the tolerances, cf. 294 U. S. Chicago, M., St. P. & P. R. Co., 294 U.S. Page 350 U. S. 173 499, 294 U. S. 504-505, 294 U. S. 510-511, but with the strong impression that they are likely to operate in a forbidden manner. The report contains no answers to the problems we have raised, if indeed the Commission considered them at all. Since the report falls far short of establishing that the tolerances will not operate to limit carrier liability in violation of § 20(11), the order of the Commission approving the tolerances must be set aside, and the judgment belowReversed

U.S. Supreme CourtSecretary of Agriculture v. United States, 350 U.S. 162 (1956)Secretary of Agriculture v. United StatesArgued October 12, 1955Decided January 9, 1956*350 U.S. 162SyllabusThe Interstate Commerce Commission issued an order approving tariff regulations providing that railroads will be responsible for claims for physical damage to shell eggs carried by them only to the extent that such damage is in excess of specified percentages or "tolerances." The validity of the regulations was challenged on the ground that they violated § 20(11) of the Interstate Commerce Act, which provides that any carrier subject to the Act receiving property for interstate transportation "shall be liable . . . for any loss, damage, or injury to such property caused by it" and forbids any limitation of, or exemption from, such liability. The Commission had concluded that, since the tolerances represented pre-shipment and unavoidable damage not "caused by" the railroads, their deduction from damage claims could not limit the railroads' proper liability.Held: the Commission's findings were insufficient to support this conclusion or to establish that the tolerances permitted by its order will not operate to limit carrier liability in violation of § 20(11), and the Commission's order must be set aside. Pp. 350 U. S. 163-173.119 F. Supp. 86 reversed. Page 350 U. S. 163

1974_73-1313

MR. JUSTICE REHNQUIST delivered the opinion of the Court.In 1947, Congress responded to the labor unrest caused by jurisdictional disputes by adding § 8(b)(4)(D) to the National Labor Relations Act, which made it an unfair labor practice for a labor organization to induce the employees of any employer to strike in the hopes of forcing an employer to assign particular work to employees in a particular labor organization. [Footnote 1] In the belief Page 419 U. S. 431 that resolution of jurisdictional disputes was more important to industrial peace than the imposition of unfair labor practice sanctions, NLRB v. Radio Engineers, 364 U. S. 573, 364 U. S. 576-577 (1961) (hereinafter CBS), Congress at the same time enacted 10(k), 29 U.S.C. 160(k), [Footnote 2] to induce unions to settle their differences without awaiting unfair labor practice proceedings and enforcement of Board orders by courts of appeals.One year earlier, Congress had responded to the many expressed concerns for fairness and regularity in the administrative process summarized in Wong Yang Sung v. McGrath, 339 U. S. 33, 339 U. S. 36-41 (1950), by enacting the Administrative Procedure Act (Act). [Footnote 3] Section 5 of that Act, now 5 U.S.C. § 554, establishes requirements governing certain agency proceedings that come within the Act's definition of "adjudication." We granted certiorari to the Court of Appeals for the Seventh Circuit in this Page 419 U. S. 432 case, 416 U.S. 981 (1974), to review its conclusion that 5 U.S.C. § 554 applied to a § 10(k) proceeding conducted by the Board, 486 F.2d 863 (1973). Another Court of Appeals had decided a short time earlier that such a Board proceeding was not subject to § 554, Bricklayers v. NLRB, 155 U.S.App.D.C. 47, 475 F.2d 1316 (1973). The case now before us arose out of a jurisdictional dispute between respondent Local 134 of the International Brotherhood of Electrical Workers (IBEW) (hereafter respondent) and the Communications Workers of America (CWA) over whose members would perform certain telephone installation work in Cook County, Ill. Petitioner International Telephone & Telegraph Corp., which had a nationwide collective bargaining agreement with the CWA, had established a communications equipment and systems division to sell and install private telephone systems. [Footnote 4] In 1970, petitioner entered into a contract with the village of Elk Grove, Ill., for the installation and sale of a switching system and related telephone and circuitry work. Since employees of the Illinois Bell Telephone Co., who were members of respondent, had already run trunklines from the local operating telephone system to the Administrative Office of the village, petitioner's contract covered only the remaining two stages necessary to complete installation of the system. First the telephone cable had to be routed from the telephone room in the basement to the telephone instruments in particular rooms and offices by a process known as "pulling cable"; petitioner subcontracted this work to the C. A. Riley Electric Construction Co., Page 419 U. S. 433 whose employees are represented by respondent. Second, by a process known as "terminating the cable," the cable would be connected to the telephone instruments. Petitioner planned to have its OWI technicians, who were represented by the CWA, perform this work.C. A. Riley had hoped to perform the terminating work, and inquired of petitioner's supervisor whether that was possible. The supervisor informed Riley of petitioner's plan to have its own employees do the work, and Riley told the supervisor that petitioner's representatives had better meet with the business agent of respondent. On two occasions, petitioner's representatives met with the union business agent, who told them that respondent installed all telephone equipment in Cook County and that CWA members would install no telephone equipment in Cook County. On the second occasion, the respondent's business agent was quite explicit: "We'd better get that work, or there will be trouble." [Footnote 5]When CWA employees appeared at the jobsite on December 3, 1970, to begin their portion of the work, all of respondent's members left their jobs. [Footnote 6] That afternoon, Page 419 U. S. 434 a representative of the village of Elk Grove met with petitioner's regional sales manager, and they agreed to pull petitioner's employees off the job temporarily. Representatives of respondent were informed, and all Local 134 employees thereafter returned to work. [Footnote 7]On December 3, 1970, petitioner filed a charge alleging that respondent had violated § 8(b)(4)(D) of the National Labor Relations Act, 29 U.S.C. § 158(b)(4)(D). The Board's Regional Director found reasonable cause to believe that the charge had merit, and proceeded in accordance with the language of § 10(k):"Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph (4)(D) of section 158(b) of this title, the Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen, unless, within ten days after notice that such charge has been filed, the parties to such dispute submit to the Board satisfactory evidence that they have adjusted, or agreed upon methods for the voluntary adjustment of, the dispute. Upon compliance by the parties to the dispute with the decision of the Board or upon such voluntary adjustment of the dispute, such charge shall be dismissed."29 U.S.C. § 160(k). Respondent was notified that a hearing would be conducted by a hearing officer [Footnote 8] upon the dispute alleged in Page 419 U. S. 435 the charge, and the hearing was held on March 12, 15, and 17, 1971, with Stephen S. Schulson, an attorney in the regional office, presiding. All parties appeared at the hearing and were given full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. In accordance with NLRB regulations, the record was transmitted to the Board for decision without any recommendation from the hearing officer. [Footnote 9] The Board received briefs from petitioner, respondent, and the CWA, and concluded that employees represented by the CWA were entitled to perform the work in dispute. 191 N.L.R.B. 828 (1971). On August 30, 1971, respondent notified the Regional Director that it would not comply with the Board's § 10(k) determination. The Regional Director, on behalf of the Board's General Counsel, then issued a complaint upon the § 8(b)(4)(D) unfair labor practice charge that had been held in abeyance pending the attempt to resolve the dispute pursuant to the § 10(k) proceeding. At the hearing before a trial examiner, the General Counsel was represented by the same attorney who had presided over the compilation of testimony for Page 419 U. S. 436 the Board in the § 10(k) proceeding. The trial examiner concluded that respondent had violated § 8(b)(4)(D), and he recommended that it be ordered to cease its unlawful conduct; exceptions were filed with the Board [Footnote 10] which it overruled in ordering respondent to cease and desist from its unlawful conduct. 197 N.L.R.B. 879 (1972).Respondent filed a petition to review and set aside the Board's order in the Court of Appeals for the Seventh Circuit, and the Board filed a cross-application for enforcement of its order. [Footnote 11] The Court of Appeals found respondent's conduct to be "the very activity § 8(b)(4)(D) was intended to prohibit," 486 F.2d at 866, but refused to enforce the Board's order because it decided that the Board had not complied with the Act, 5 U.S.C. § 554. [Footnote 12] The court was under the impression that the Page 419 U. S. 437 parties had "admitted that § 554 applies to § 10(k) hearings," 486 F.2d at 867, and regarded the participation by Schulson in both proceedings as a violation of 5 U.S.C. Page 419 U. S. 438 § 554(d), which prohibits commingling prosecutorial and adjudicatory functions. See n 12, supra. Even though the Board had argued that the § 10(k) proceeding "was without binding effect on anyone," so that"it was not improper for the same person to perform the functions of hearing officer and subsequently prosecute an unfair labor practice charge based upon the evidence adduced at that hearing,"the Court of Appeals relied upon this Court's opinion in NLRB v. Plasterers' Union, 404 U. S. 116 (1971), to support its conclusion that"the hearing officer's rulings at the § 10(k) hearing largely determine what evidence the Board will have to consider at the Unfair Labor Practice Hearing. . . ."486 F.2d at 866-867. With that perspective, the Court of Appeals found the attorney's participation to be "plainly inconsistent with both the spirit and the letter of the Act." Id. at 868.ITo determine whether § 554 governs proceedings conducted under § 10(k) of the National Labor Relations Act necessitates some understanding of both statutory provisions which, as noted above, were enacted within a year of each other. The Administrative Procedure Act was aptly described in Wong Yang Sung, supra, as "a new, basic and comprehensive regulation of procedures in many agencies," 339 U.S. at 339 U. S. 36. The Court there Page 419 U. S. 439 further observed that the Act "contains many compromises and generalities and, no doubt, some ambiguities." Id. at 339 U. S. 40-41. Because it was designed to regulate administrative proceedings throughout a wide spectrum of agency activities, its language is necessarily abstract in many places. The more we may know about the particular agency proceeding to which the Act is sought to be applied, the better we will be able to apply it.The events leading up to the enactment of §§ 8(b)(4)(D) and 10(k) have been recounted by this Court in CBS, supra, and Plasterers' Union, supra, and need not here be reviewed in detail. Congress made the judgment"that it is more important to industrial peace that jurisdictional disputes be settled permanently than it is that unfair labor practice sanctions for jurisdictional strikes be imposed upon unions."CBS, 364 U.S. at 364 U. S. 577. Voluntary and therefore prompt resolution of such jurisdictional disputes is encouraged both by the 10-day grace period following notice of the filing of an unfair labor practice charge and by the dismissal of such a charge if the union complies with the Board's adverse § 10(k) determination. 29 CFR § 101.36.To effectuate the congressional objective of prompt resolution of jurisdictional disputes, almost from the date of the enactment of § 10(k), the Board has applied procedures to proceedings under that section that are quite different from those of a proceeding under § 8(b)(4)(D). The § 10(k) hearing is described in the Board's regulations:"If the parties have not adjusted the dispute or agreed upon methods of voluntary adjustment, a hearing, usually open to the public, is held before a hearing officer. The hearing is nonadversary in character, and the primary interest of the hearing officer is to insure that the record contains as full a Page 419 U. S. 440 statement of the pertinent facts as may be necessary for a determination of the issues by the Board. All parties are afforded full opportunity to present their respective positions and to produce evidence in support of their contentions. The parties are permitted to argue orally on the record before the hearing officer. At the close of the hearing, the case is transmitted to the Board for decision. The hearing officer prepares al analysis of the issues and the evidence, but makes no recommendations in regard to resolution of the dispute."29 CFR § 101.34. Streamlined procedures were both designed and justified because"the decision in the proceedings under Section 10(k) is a preliminary administrative determination made for the purpose of attempting to resolve a dispute within the meaning of that section; the unfair labor practice itself is litigated at a subsequent hearing before a Trial Examiner in the event the dispute remains unresolved."National Union of Marine Cooks & Stewards (Irwin-Lyons Lumber Co.), 83 N.L.R.B. 341 (1949). [Footnote 13] Page 419 U. S. 441The Board concluded from this analysis of the nature of the § 10(k) proceeding that the provisions of the Act governing adjudications were not applicable. While an agency's interpretation of the Act may not be entitled to the same weight as the agency's interpretation of its own substantive mandate, see United States v. Florida East Coast R. Co., 410 U. S. 224, 410 U. S. 236 n. 6 (1973), its characterization of its own proceeding is entitled to weight, and that characterization may, in turn, have relevance in determining the applicability of the Act.IIThe question which we must decide here is whether the § 10(k) determination is an "adjudication" governed by the Act, 5 U.S.C. § 554. The Court of Appeals did not consider in any detail whether § 554 governs § 10(k) proceedings, since it was under the impression that the parties had conceded the general applicability of this Page 419 U. S. 442 section to such hearings. 486 F.2d at 867. Petitioner and the Board contend that the Court of Appeals was mistaken with respect to any such concession, and state that they argued both in their principal briefs and in their petitions for rehearing that 554 was not applicable. Respondent acknowledges that no such concession was made, [Footnote 14] and we therefore address the issue on its merits.If one were to start with the proposition that all administrative action falls into one of two categories, rulemaking or adjudication, the § 10(k) determination certainly is closer to the latter than to the former. But such light as we have on the intention of Congress when it enacted the Act does not indicate that this is a sound starting point. Knowledgeable authorities in this field observed shortly after passage of the Act that "certain types of agency action are neither rulemaking nor adjudication." Ginnane, "Rule Making," "Adjudication" and Exemptions Under the Administrative Procedure Act, 95 U.Pa.L.Rev. 621, 633 (1947); Netterville, The Administrative Procedure Act: A Study in Interpretation, 20 Geo.Wash.L.Rev. 1, 33 (1951); cf. Attorney General's Manual on the Administrative Procedure Act 40 (1947).Section 554 applies "in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing," [Footnote 15] and 5 Page 419 U. S. 443 U.S.C. § 551(7), defines "adjudication" as "agency process for the formulation of an order"; "order" is in turn defined as "the whole or a part of a final disposition . . . of an agency in a matter other than rule making but including licensing," 5 U.S.C. § 551(6). While one might argue that an intermediate proceeding within an agency is necessarily a "part" of a "final order," we think a sounder interpretation of the language Congress used is that the phrase "whole or a part" refers to components of that which is itself the final disposition required by the definition of "order" in § 551(6). Intermediate proceedings within an agency may be subject to the provisions of § 554, however, by virtue of the fact that they are "agency process for the formulation of an order", rather than because their product is a "part" of the final disposition. Thus, if the Board's § 10(k) determination is itself a "final disposition" of a Board proceeding or is "agency process for the formulation" of an order in a resulting § 8(b)(4)(D) proceeding, then the § 10(k) proceeding is governed by 5 U.S.C. § 554.In a tautological sense, of course, the Board's determination in a § 10(k) proceeding is a "final disposition" of that proceeding, but we think that, when Congress defined "order" in terms of a "final disposition," it required that "final disposition" to have some determinate consequences for the party to the proceeding. The Board does not order anybody to do anything at the conclusion of a § 10(k) proceeding. As the Attorney General's Manual on the Administrative Procedure Act 40 (1947) observed:"[I]nvestigatory proceedings, no matter how formal, which do not lead to the issuance of an order containing the element of final disposition as required by the definition, do not constitute adjudication."This Page 419 U. S. 444 Court noted in Plasterers' Union, 404 U.S. at 404 U. S. 126, that "the 10(k) decision standing alone, binds no one." We conclude, therefore, that the § 10(k) determination is not itself a "final disposition" within the meaning of "order" and "adjudication" in 5 U.S.C. §§ 551(6), (7).Respondent's principal argument for affirmance of this case rests on the contention that, although the § 10(k) determination may not itself be a "final disposition," and therefore an "order," it is "agency process for the formulation" of the ultimate § 8(b)(4)(D) order that the Board may issue.There are undoubtedly important practical consequences in the § 8(b)(4)(D) proceeding that result from the Board's determination in the § 10(k) proceeding. These were described in the following language in Plasterers' Union, supra, at 404 U. S. 126-127:"[T]he impact of the § 10(k) decision is felt in the § 8(b)(4)(D) hearing because, for all practical purposes, the Board's award determines who will prevail in the unfair labor practice proceeding. If the picketing union persists in its conduct despite a § 10(k) decision against it, a § 8(b)(4)(D) complaint issues and the union will likely be found guilty of an unfair labor practice and be ordered to cease and desist. On the other hand, if that union wins the § 10(k) decision and the employer does not comply, the employer's § 8(b)(4)(D) case evaporates, and the charges he filed against the picketing union will be dismissed. Neither the employer nor the employees to whom he has assigned the work are legally bound to observe the § 10(k) decision, but both will lose their § 8(b)(4)(D) protection against the picketing which may, as it did here, shut down the job. The employer will be under intense pressure, practically, to conform to the Board's decision. This is the design of the Act; Congress provided no other Page 419 U. S. 445 way to implement the Board's § 10(k) decision."(Footnote omitted.) But we do not think that such practical consequences alone make the § 10(k) proceeding related to the § 8(b)(4)(D) proceeding in a manner that would make the former "agency process" for the formulation of the order in the latter. The prototype of an intermediate proceeding that is "agency process for the formulation of an order," is a hearing before an administrative law judge who makes findings of fact and conclusions of law, initially decides the case, and whose recommended decision "becomes the decision of the agency . . . unless there is an appeal to, or review on motion of, the agency." 5 U.S.C. § 557(b). All of the parties to this case, for instance, agree that the § 8(b)(4)(D) unfair labor practice hearing before the trial examiner (now administrative law judge) was subject to § 554, since it was "agency process for the formulation of an order."The relationship between the § 10(k) proceeding and the § 8(b)(4)(D) proceeding, however, is quite distinct from the relationship between the hearing before an administrative law judge and ultimate review of his findings and recommendations by the agency. The § 10(k) proceeding has a life of its own from the time that testimony is taken in the field by a hearing officer until the time the Board, with the record of the testimony before it but with no proposed findings or conclusions or recommendations from the hearing officer, reaches its own determination. The Board's attention in the § 10(k) proceeding is not directed to ascertaining whether there is substantial evidence to show that a union has engaged in forbidden conduct with a forbidden objective. Those inquiries are left for the § 8(b)(4)(D) proceeding. [Footnote 16] Page 419 U. S. 446 Indeed, the Board's § 10(k) determination is not unlike an advisory opinion, since the matter may well end there. If the Board determines that employees of the charged union are entitled to the work, the § 8 (b)(4)(D) charge against it will be dismissed. 29 CFR § 102.91. If the Board determination is adverse to the charged union and the union accedes, the § 8(b)(4)(D) charge will be dismissed and the General Counsel will not issue a complaint. Ibid. Only if the union indicates that it will not comply with the Board's determination are further proceedings necessitated, and those proceedings will be under § 8(b)(4)(D), not § 10(k). As this Court observed in Plasterers' Union, 404 U.S. at 404 U. S. 122 n. 10:"The § 10(k) determination is not binding as such even on the striking union. If that union continues to picket despite an adverse § 10(k) decision, the Board must prove the union guilty of a § 8(b)(4)(D) violation before a cease and desist order can issue. The findings and conclusions in a § 10(k) proceeding are not res judicata on the unfair labor practice issue in the later § 8(b)(4)(D) determination. International Typographical Union, 125 N.L.R.B. 759, 761 (1959). Both parties may put Page 419 U. S. 447 in new evidence at the § 8(b)(4)(D) stage, although often, as in the present cases, the parties agree to stipulate the record of the § 10(k) hearing as a basis for the Board's determination of the unfair labor practice. Finally, to exercise its powers under § 10(k), the Board need only find that there is reasonable cause to believe that a § 8(b)(4)(D) violation has occurred, while, in the § 8(b)(4)(D) proceeding itself, the Board must find by a preponderance of the evidence that the picketing union has violated § 8(b)(4)(D). International Typographical Union, supra, at 761 n. 5 (1959)."In each case, it is the agency itself, the National Labor Relations Board, which makes the ultimate determination. The same issues will generally be relevant, the record of the earlier proceeding will be admitted in the later one, 29 CFR § 102.92, and the Board's ruling on the merits of those issues which are common to the two proceedings is likely to be the same in the one as in the other. But the proceedings are nonetheless separate; the same tribunal finally determines each of them.Were we to adopt respondent's position that merely because a § 10(k) determination has a significant practical effect on the § 8(b)(4)(D) proceeding, it was therefore "agency process for the formulation" of the § 8(b)(4)(D) order, we might well sweep under the definition of that term numerous ancillary agency proceedings that are distinct from the adjudications on which they have an effect, and which the language of the Act does not appear to have been designed to reach. We therefore decline to adopt that position. We accordingly conclude that a § 10(k) determination is neither itself a final disposition under the definitional section of the Act nor is it "agency process for the formulation of an order" within the meaning of that section. Proceedings under Page 419 U. S. 448 10(k) are therefore not governed by the Act, 5 U.S.C. § 554.Although the Board's § 10(k) proceedings need not be conducted pursuant to the Act, 5 U.S.C. § 554, the agency remains "free under the Act to accord litigants appearing before it more procedural rights than the Act requires," Florida East Coast R. Co., 410 U.S. at 410 U. S. 236 n. 6. [Footnote 17] The Board's procedures are, of course, constrained by the Due Process Clause of the Fifth Amendment, but respondent has raised no contention that attorney Schulson's participation in both proceedings approached a constitutional violation. [Footnote 18]The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtIT&T Corp. v. Electrical Workers, 419 U.S. 428 (1975)International Telephone & Telegraph Corp. v. Local 134,International Brotherhood of Electrical Workers, AFL-CIONo. 73-1313Argued November 19, 1974Decided January 14, 1975419 U.S. 428SyllabusPetitioner employer filed an unfair labor practice charge against respondent union under § 8(b)(4)(D) of the National Labor Relations Act (NLRA), which makes it an unfair labor practice for a labor organization to induce employees to strike to force an employer to assign particular work to employees in a particular labor organization. Section 10(k) of the NLRA provides that, whenever a § 8(b)(4)(D) unfair labor practice charge is filed, the National Labor Relations Board shall hear and determine the dispute out of which such unfair labor practice arose, unless, within 10 days after notice that such charge has been filed, the parties submit evidence that they have adjusted the dispute, in which case or upon compliance with the Board's decision, such charge shall be dismissed. Pursuant to § 10(k), a hearing was held before a hearing officer, and subsequently the Board rendered a decision adverse to respondent, which then indicated it would not comply therewith. The Board's General Counsel thereafter issued a complaint on the unfair labor practice charge, and at a trial examiner's hearing, at which the General Counsel was represented by the same attorney who had been the hearing officer in the § 10(k) proceeding, the trial examiner concluded that respondent had violated § 8(b)(4)(D), and the Board issued a cease and desist order. The Court of Appeals, on respondent's petition to set aside the order, agreed that respondent had violated § 8(b)(4)(D), but refused to enforce the order, on the ground that, because the § 10(k) hearing officer had participated in both the § 10(k) and the § 8(b)(4)(D) proceedings, the Board had not complied with the Administrative Procedure Act (APA), 5 Page 419 U. S. 429 U.S.C. § 554(a), which prohibits commingling prosecutorial and adjudicatory functions in agency proceedings, and generally applies to "every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing," 5 U.S.C. § 551(7), defining "adjudication" as "agency process for the formulation of an order," and § 551(6), defining "order" as "the whole or a part of a final disposition . . . of an agency in a matter other than rule making."Held: The APA, 5 U.S.C. § 554, does not govern proceedings conducted under § 10(k) of the NLRA. Pp. 419 U. S. 441-448.(a) The § 10(k) determination is not itself a "final disposition" within the meaning of "order" and "adjudication" in the APA. When Congress defined "order" in terms of a "final disposition," it required that "final disposition" to have some determinate consequences for the party to the proceeding, and here the Board does not order anybody to do anything at the conclusion of the § 10(k) proceeding. Pp. 419 U. S. 441-444.(b) Nor is such determination "agency process for the formulation of an order" within the meaning of 5 U.S.C. § 551(7). Although important practical consequences in the § 8(b)(4)(D) proceeding result from the Board's determination in the § 10(k) proceeding, they do not alone make the § 10(k) proceeding related to the § 8(b)(4)(D) proceeding in a manner that would make the former "agency process" for the formulation of the order of the latter. The § 10(k) proceeding is unlike the typical hearing before an administrative law judge, which is then subject to consideration by the agency. The issues in a § 10(k) proceeding are similar to, but not identical with, the focus of the § 8(b)(4)(D) proceeding. The standard of proof is different, and the inquiry in a § 8(b)(4)(D) proceeding is whether the union engaged in forbidden conduct with a forbidden objective. The proceedings are separate, and the agency makes the determination in each of them. Pp. 419 U. S. 444-448.486 F.2d 863, reversed and remanded.REHNQUIST, J., delivered the opinion for a unanimous Court. Page 419 U. S. 430

1958_49

MR. JUSTICE BRENNAN delivered the opinion of the Court.As the result of multiemployer, multistate collective bargaining with the Central States Drivers Council, comprising local unions of truck drivers affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, a collective bargaining agreement, the "Central States Area Over-the-Road Motor Freight Agreement," effective February 1, 1955, and expiring January 31, 1961, was entered into by the locals and motor carriers in interstate commerce who operate under the authority of the Interstate Commerce Commission [Footnote 1] in 12 midwestern States, including Ohio. [Footnote 2] Article XXXII of this collective bargaining agreement [Footnote 3] prescribes terms and conditions which regulate the minimum rental and certain other terms of lease when a Page 358 U. S. 285 motor vehicle is leased to a carrier by an owner who drives his vehicle in the carrier's service. [Footnote 4] The Ohio courts enjoined the petitioner, Ohio's Teamsters Local 24 and its president, and the respondent carriers, A.C.E. Transportation Company, Inc., and Interstate Truck Service, Inc., Ohio employers, from giving effect to the provisions of Article XXXII. The Ohio courts held that the Article violates the Ohio antitrust law, known as the Valentine Act. [Footnote 5] The question is whether the fact that the Article Page 358 U. S. 286 was contained in an agreement which was the fruit of the exercise of collective bargaining rights under the National Labor Relations Act [Footnote 6] precluded the Ohio courts from applying the Ohio antitrust law to prohibit the parties from carrying out the terms of the Article they had agreed upon in bargaining. No claim is made that Article XXXII violates any provision of federal law.The Article is in express terms made applicable only to a lessor-driver when he himself drives his vehicle in the Page 358 U. S. 287 business of the lessee-carrier. § 1. The Article, at least in words, constitutes the lessor-driver an employee of the carrier at such times:"The employer [the carrier] expressly reserves the right to control the manner, means and details of, and by which, the owner-operator performs his services, as well as the ends to be accomplished."§ 4. His wages, hours and working conditions are then to be those applied to the carrier's drivers of carrier-owned vehicles, and he has "seniority as a driver only." § 2. He must operate his vehicle at such times "exclusively in . . . [the carrier's] service and for no other interests." § 1. The carrier "agrees to pay . . . social security tax, compensation insurance, public liability and property damage insurance, bridge tolls" and various other fees imposed on motor freight transportation, except "that the owner-driver shall pay license fees in the state in which title is registered." § 10. The lessor-driver must be compensated by "separate checks . . . for driver's wages and equipment rental." § 6. The wage payment must be in the amount of "the full wage rate and supplementary allowances" payable to carrier drivers similarly circumstanced who drive carrier-owned vehicles. § 12(a). The equipment rental payment must be in an amount not less than "the minimum rates" specified by the Article which"result from the joint determination of the parties that such rates represent only the actual cost of operating such [leased] equipment. The parties have not attempted to negotiate a profit for the owner-driver."§ 12(b). All leases by union members who drive their vehicles for carriers in effect on the operative date of the collective bargaining agreement are to "be dissolved or modified within thirty (30) days" to conform to the terms and conditions of the Article. § 15. The parties declare that"the intent of this clause [the Article] . . . is to assure the payment of the Union scale of wages . . . and to prohibit [a carrier from] the making Page 358 U. S. 288 and carrying out of any plan, scheme or device to circumvent or defeat the payment of wage scales provided in this Agreement. . . . [and] to prevent the continuation of or formation of combinations or corporations or so-called lease of fleet arrangements whereby the driver [of his own vehicle] is required to and does periodically pay losses sustained by the corporation or fleet arrangement, or is required to accept less than the actual cost of the running of his equipment, thus, in fact, reducing his scale of pay."§ 16.The respondent, Revel Oliver, a member of the union, is the owner of motor equipment [Footnote 7] which, at the time the collective bargaining agreement was negotiated, was subject to written lease agreements with the carrier respondents, A.C.E. Transportation Company, Inc., and Interstate Truck Service, Inc. The terms and conditions of the leases, particularly in regard to rental compensation, differ substantially from those provided in Article XXXII. [Footnote 8]Oliver brought this action on January 20, 1955, in the Court of Common Pleas, Summit County, Ohio, for an injunction restraining the petitioners and the respondent carriers from carrying out the terms of Article XXXII. Page 358 U. S. 289 He obtained a temporary restraining order upon sworn allegations. At the trial, the respondent carriers joined with Oliver in making the attack on the Article. The petitioners defended on the ground that the State could not lawfully exercise power to apply its antitrust law to cause a forfeiture of the product of the exercise of federally sanctioned collective bargaining rights. The union justified the Article as necessary to prevent undermining of the negotiated drivers' wage scale said to result from a practice of carriers of leasing a vehicle from an owner-driver at a rental which returned to the owner-driver less than his actual costs of operation, so that the driver's wage received by him, although nominally the negotiated wage, was actually a wage reduced by the excess of his operating expenses over the rental he received. The Court of Common Pleas held in Oliver v. All-States Freight, 156 N.E.2d 176, that the National Labor Relations Act could not "be reasonably construed to permit this remote and indirect approach to the subject of wages," and that Article XXXII was in violation of the State's antitrust law because"there are restrictions and restraints imposed upon articles [the leased vehicles] that are widely used in trade and commerce. . . . [and] preclude an owner of property from reasonable freedom of action in dealing with it."On the petitioners' appeal to Ohio's Ninth Judicial District Court of Appeals that court heard the case de novo and affirmed the judgment of the Court of Common Pleas, adopting its opinion. 156 N.E.2d 190. The Court of Appeals entered a permanent injunction perpetually restraining the petitioners and the respondent carriers (1) "from entering into any agreements . . . or carrying out the . . . requirements . . . of any such agreement, which will require the alteration" of Revel Oliver's "existing lease or leasing agreement"; (2) "from entering into any . . . agreement or stipulation in the future, or Page 358 U. S. 290 the negotiation therefor, the . . . tendency of which is to . . . determine in any manner the rate to be charged for the use of" Revel Oliver's equipment; (3) "from giving force and effect to Section 32 [sic] of the Contract . . . or any modification . . . thereof, the . . . tendency of which shall attempt to fix the rates" for the use of Revel Oliver's equipment. [Footnote 9] Petitioners' appeal Page 358 U. S. 291 to the Ohio Supreme Court was dismissed for want of a debatable constitutional question. 167 Ohio St. 299, 147 N.E.2d 856. We granted certiorari to consider the important question raised of the interaction of state and federal power arising from the petitioners' claim that the Ohio regulation abridges rights protected by federal statute. 356 U.S. 966.Article XXXII did not originate with the 1955 agreement. The carriers and the union have disputed since 1938 the terms of a carrier's hire of a lessor's driving services with his leased vehicle. The usual lease is by the owner of a single vehicle who hires out his services as driver with his vehicle. A carrier's representative who has participated in all contract negotiations since those leading to the 1938 agreement testified to the history. According to him, the nub of the union's position over the two decades has been that the carriers abuse the leasing practice, particularly by paying inadequate rentals for the use of leased vehicles, with the result"that part of the men's wages for driving was being used for the upkeep of their vehicles. . . . They [the union] claimed that the leased people were breaking down the rate structure. . . ."The union's demands for contract provisions to safeguard against the alleged abuse were designed also to "secure a living wage [for the lessor] plus an adequate rental for his equipment." A minimum rental clause first appeared in the 1938 agreement which also contained provisions comparable to §§ 8, 10 and 14 of present Article XXXII. Page 358 U. S. 292 In 1939, after the union claimed that "there was a lot of people that was transferring their title into other people's name to avoid the conditions of the contract," § 3 was added to provide that "certificate and title to the equipment must be in the name of the actual owner." When the dispute brought the parties to the verge of a strike in 1941, the note to § 1 and §§ 13, 15, 16, 17 and 18 came into the agreement. But, by 1946, the controversy reached a pitch where the union demanded agreement from the carriers to abolish the leasing practice:"The unions were going to refuse the addition of any individual owners, and the unions also desired to make certain restrictions on the use of owner-operators, again claiming that the . . . company operators were taking advantage of certain provisions of the contract."This demand was compromised by the addition of § 19 restricting leasing to carriers "who will agree to submit all grievances pertaining to owner-operators to joint Employer-Union grievance committees in each respective state"; the section"represented the compromise between the union position that it should abolish all owner-operators and the companies' contention there should be no limitation."First. The Ohio courts rejected the petitioners' contention that the evidence conclusively established that Article XXXII dealt with subject matter within the scope of "collective bargaining" in which federal law gave petitioners the right to engage. The state courts rested their judgments principally on the minimum rental regulations of § 12 of the Article. The principal discussion occurs in the opinion of the Court of Common Pleas. These regulations were held to constitute the Article a price-fixing arrangement violating the Ohio antitrust law in that they evidenced"concerted action of the Union combining with a non-labor third party in a formal contract. . . . [the] effect [of which] is to oppress and Page 358 U. S. 293 destroy competition. . . . [and] preclude an owner of property from reasonable freedom of action in dealing with it."It seems to us that in considering whether the Article deals with a subject matter within the scope of collective bargaining as defined by federal law the Ohio courts did not give proper significance to the Article's narrowly restricted application to the times when the owner drives his leased vehicle for the carrier, and to the adverse effects upon the negotiated wage scale which might result when the rental for the use of the leased vehicle was unregulated at these times. Since no claim was presented to the Ohio courts that the petitioners sought to apply these regulations to Revel Oliver's arrangements with the respondent carriers except on the very infrequent and irregular occasions when Oliver drove one of his vehicles for a carrier, we take it that the Ohio courts' opinions and judgments relate only to the validity of the Article as applied at such times. This would necessarily be the case as the text of the Article, and that text as illumined by its history, conclusively establish that the regulations in no wise apply to the terms of lease of a vehicle when driven by a driver not the owner of the vehicle; the wages, hours and working conditions to be observed by contracting employers of non-owner drivers are governed by the general provisions in that regard found in other articles of the collective bargaining agreement.In the light of the Article's history and purpose, we cannot agree with the Court of Common Pleas that its regulations constitute a "remote and indirect approach to the subject of wages," outside the range of matters on which the federal law requires the parties to bargain. The text of the Article and its unchallenged history show that its objective is to protect the negotiated wage scale against the possible undermining through diminution of Page 358 U. S. 294 the owner's wages for driving which might result from a rental which did not cover his operating costs. This is thus but an instance, as this Court said of a somewhat similar union demand in another case, in which a union seeks to protect lawful employee interests against what is believed, rightly or wrongly, to be"a scheme or device utilized for the purpose of escaping the payment of union wages and the assumption of working conditions commensurate with those imposed under union standards."Milk Wagon Drivers' Union v. Lake Valley Farm Products, Inc., 311 U. S. 91, 311 U. S. 98-99. Looked at in this light, as on the evidence it must be, to determine its relevance to the collective bargaining rights under the Federal Act, the point of the Article is obviously not price-fixing but wages. The regulations embody not the "remote and indirect approach to the subject of wages" perceived by the Court of Common Pleas, but a direct frontal attack upon a problem thought to threaten the maintenance of the basic wage structure established by the collective bargaining contract. The inadequacy of a rental which means that the owner makes up his excess costs from his driver's wages not only clearly bears a close relation to labor's efforts to improve working conditions, but is, in fact, of vital concern to the carrier's employed drivers; an inadequate rental might mean the progressive curtailment of jobs through withdrawal of more and more carrier-owned vehicles from service. Cf. Bakery Drivers Local v. Wohl, 315 U. S. 769, 315 U. S. 771. It is not necessary to attempt to set precise outside limits to the subject matter properly included within the scope of mandatory collective bargaining, cf. Labor Board v. Borg-Warner Corp., 356 U. S. 342, to hold, as we do, that the obligation under § 8(d) on the carriers and their employees to bargain collectively "with respect to wages, hours, and other terms and conditions of employment" and to embody their understanding in "a Page 358 U. S. 295 written contract incorporating any agreement reached," found an expression in the subject matter of Article XXXII. See Timken Roller Bearing Co., 70 N.L.R.B. 500, 518, reversed on other grounds, 161 F.2d 949. And certainly bargaining on this subject through their representatives was a right of the employees protected by § 7 of the Act.Second. We must decide whether Ohio's antitrust law may be applied to prevent the contracting parties from carrying out their agreement upon a subject matter as to which federal law directs them to bargain. Little extended discussion is necessary to show that Ohio law cannot be so applied. We need not concern ourselves today with a contractual provision dealing with a subject matter that the parties were under no obligation to discuss; the carriers, as employers, were under a duty to bargain collectively with the union as to the subject matter of the Article, as we have shown. The goal of federal labor policy, as expressed in the Wagner and Taft-Hartley Acts, is the promotion of collective bargaining; to encourage the employer and the representative of the employees to establish, through collective negotiation, their own charter for the ordering of industrial relations, and thereby to minimize industrial strife. See Labor Board v. Jones & Laughlin Steel Corp., 301 U. S. 1, 301 U. S. 45; Labor Board v. American National Ins. Co., 343 U. S. 395, 343 U. S. 401-402. Within the area in which collective bargaining was required, Congress was not concerned with the substantive terms upon which the parties agreed. Cf. Terminal Railroad Ass'n v. Brotherhood of Railroad Trainmen, 318 U. S. 1, 318 U. S. 6. The purposes of the Acts are served by bringing the parties together and establishing conditions under which they are to work out their agreement themselves. To allow the application of the Ohio antitrust law here would wholly defeat the full realization of the congressional Page 358 U. S. 296 purpose. The application would frustrate the parties' solution of a problem which Congress has required them to negotiate in good faith toward solving, and in the solution of which it imposed no limitations relevant here. Federal law here created the duty upon the parties to bargain collectively; Congress has provided for a system of federal law applicable to the agreement the parties made in response to that duty, Textile Workers Union v. Lincoln Mills, 353 U. S. 448; and federal law sets some outside limits (not contended to be exceeded here) on what their agreement may provide, see Allen Bradley Co. v. Local Union, 325 U. S. 797; cf. United States v. Employing Plasterers' Ass'n, 347 U. S. 186, 347 U. S. 190. We believe that there is no room in this scheme for the application here of this state policy limiting the solutions that the parties' agreement can provide to the problems of wages and working conditions. Cf. California v. Taylor, 353 U. S. 553, 353 U. S. 566-567. 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. Hill v. Florida, 325 U. S. 538, 325 U. S. 542-544. Cf. International Union v. O'Brien, 339 U. S. 454, 339 U. S. 457; Amalgamated Ass'n v. Wisconsin Employment Relations Board, 340 U. S. 383; Plankinton Packing Co. v. Wisconsin Employment Relations Board, 338 U.S. 953. The solution worked out by the parties was not one of a sort which Congress has indicated may be left to prohibition by the several States. Cf. Algoma Plywood & Veneer Co. v. Wisconsin Employment Relations Board, 336 U. S. 301, 336 U. S. 307-312. [Footnote 10] Of course, the paramount force of the federal Page 358 U. S. 297 law remains even though it is expressed in the details of a contract federal law empowers the parties to make, rather than in terms in an enactment of Congress. See Railway Employes' Dept. v. Hanson, 351 U. S. 225, 351 U. S. 232. Clearly it is immaterial that the conflict is between federal labor law and the application of what the State characterizes as an antitrust law.". . . Congress has sufficiently expressed its purpose to . . . exclude state prohibition, even though that with which the federal law is concerned as a matter of labor relations be related by the State to the more inclusive area of restraint of trade."Weber v. Anheuser-Busch, Inc., 348 U. S. 468, 348 U. S. 481. We have not here a case of a collective bargaining agreement in conflict with a local health or safety regulation; the conflict here is between the federally sanctioned agreement and state policy which seeks specifically to adjust relationships in the world of commerce. If there is to be this sort of limitation on the arrangements that unions and employers may make with regard to these subjects, pursuant to the collective bargaining provisions of the Wagner and Taft-Hartley Acts, it is for Congress, not the States, to provide it.Reversed

U.S. Supreme CourtTeamsters Union v. Oliver, 358 U.S. 283 (1959)Local 24, International Brotherhood of Teamsters, Chauffeurs,Warehousemen and Helpers of America, AFL-CIO v. OliverNo. 49Argued December 10-11, 1958Decided January 19, 1959358 U.S. 283SyllabusA collective bargaining agreement between a group of local labor unions and a group of interstate motor carriers prescribed a wage scale for truck drivers and, in order to prevent evasion thereof, provided that drivers who own and drive their own vehicles should be paid, in addition to the prescribed wage, not less than a prescribed minimum rental for the use of their vehicles. A suit was brought in a state court to enjoin certain carriers and a local union from carrying out the minimum rental provision on the ground that it violated a state antitrust law.Held: Since that provision was part of an agreement resulting from the exercise of collective bargaining rights under the National Labor Relations Act, the state court was precluded from applying the state antitrust law to prohibit the parties from carrying out its terms. Pp. 358 U. S. 284-297.(1) In the light of its history and its purpose to protect the negotiated wage scale against evasion through payment to owner-drivers of rentals insufficient to cover their operating costs, the minimum rental provision was within the scope of collective bargaining required of the parties under §§ 7 and 8 of the National Labor Relations Act. Pp. 358 U. S. 292-295.(2) The state antitrust law may not be applied to prevent the contracting parties from carrying out their agreement upon a subject matter as to which federal law directs them to bargain. Pp. 358 U. S. 295-297.167 Ohio St. 299, 147 N.E.2d 856, reversed. Page 358 U. S. 284

1985_84-1340

JUSTICE POWELL announced the judgment of the Court and delivered an opinion in which THE CHIEF JUSTICE and JUSTICE REHNQUIST join, and in all but Part IV of which JUSTICE O'CONNOR joins.This case presents the question whether a school board, consistent with the Equal Protection Clause, may extend Page 476 U. S. 270 preferential protection against layoffs to some of its employees because of their race or national origin.IIn 1972, the Jackson Board of Education, because of racial tension in the community that extended to its schools, considered adding a layoff provision to the Collective Bargaining Agreement (CBA) between the Board and the Jackson Education Association (Union) that would protect employees who were members of certain minority groups against layoffs. [Footnote 1] The Board and the Union eventually approved a new provision, Article XII of the CBA, covering layoffs. It stated:"In the event that it becomes necessary to reduce the number of teachers through layoff from employment by the Board, teachers with the most seniority in the district shall be retained, except that at no time will there be a greater percentage of minority personnel laid off than the current percentage of minority personnel employed at the time of the layoff. In no event will the number given notice of possible layoff be greater than the number of positions to be eliminated. Each teacher so affected will be called back in reverse order for position Page 476 U. S. 271 for which he is certificated maintaining the above minority balance."App. 13. [Footnote 2]When layoffs became necessary in 1974, it was evident that adherence to the CBA would result in the layoff of tenured nonminority teachers while minority teachers on probationary status were retained. Rather than complying with Article XII, the Board retained the tenured teachers and laid off probationary minority teachers, thus failing to maintain the percentage of minority personnel that existed at the time of the layoff. The Union, together with two minority teachers who had been laid off, brought suit in federal court, id. at 30 (Jackson Education Assn. v. Board of Education (Jackson I) (mem. op.)), claiming that the Board's failure to adhere to the layoff provision violated the Equal Protection Clause of the Fourteenth Amendment and Title VII of the Civil Rights Act of 1964. They also urged the District Court to take pendent jurisdiction over state law contract claims. In its answer, the Board denied any prior employment discrimination and argued that the layoff provision conflicted with the Michigan Teacher Tenure Act. App. 33. Following trial, the District Court sua sponte concluded that it lacked jurisdiction over the case, in part because there was insufficient evidence to support the plaintiffs' claim that the Board had engaged in discriminatory hiring practices prior to 1972, id. at 35-37, and in part because the plaintiffs had not fulfilled the jurisdictional prerequisite to a Title VII claim by filing discrimination charges with the Equal Employment Opportunity Commission. After dismissing the federal claims, the District Court declined to exercise pendent jurisdiction over the state law contract claims.Rather than taking an appeal, the plaintiffs instituted a suit in state court, Jackson Education Assn. v. Board of Education, Page 476 U. S. 272 No. 77-011484CZ (Jackson Cty. Cir. Ct.1979) (Jackson II), raising in essence the same claims that had been raised in Jackson I. In entering judgment for the plaintiffs, the state court found that the Board had breached its contract with the plaintiffs, and that Article XII did not violate the Michigan Teacher Tenure Act. In rejecting the Board's argument that the layoff provision violated the Civil Rights Act of 1964, the state court found that it"ha[d] not been established that the board had discriminated against minorities in its hiring practices. The minority representation on the faculty was the result of societal racial discrimination."App. 43. The state court also found that "[t]here is no history of overt past discrimination by the parties to this contract." Id. at 49. Nevertheless, the court held that Article XII was permissible, despite its discriminatory effect on nonminority teachers, as an attempt to remedy the effects of societal discrimination.After Jackson II, the Board adhered to Article XII. As a result, during the 1976-1977 and 1981-1982 school years, nonminority teachers were laid off, while minority teachers with less seniority were retained. The displaced nonminority teachers, petitioners here, brought suit in Federal District Court, alleging violations of the Equal Protection Clause, Title VII, 42 U.S.C. § 1983, and other federal and state statutes. On cross-motions for summary judgment, the District Court dismissed all of petitioners' claims. 646 F. Supp. 1195 (ED Mich.1982). With respect to the equal protection claim, [Footnote 3] the District Court held that the racial preferences granted by the Board need not be grounded on a finding of prior discrimination. Instead, the court decided that the racial preferences were permissible under the Equal Protection Clause as an attempt to remedy societal discrimination by providing "role models" for minority schoolchildren, and upheld the constitutionality of the layoff provision. Page 476 U. S. 273The Court of Appeals for the Sixth Circuit affirmed, largely adopting the reasoning and language of the District Court. 746 F.2d 1152 (1984). We granted certiorari, 471 U.S. 1014 (1985), to resolve the important issue of the constitutionality of race-based layoffs by public employers. We now reverse.IIPetitioners' central claim is that they were laid off because of their race in violation of the Equal Protection Clause of the Fourteenth Amendment. Decisions by faculties and administrators of public schools based on race or ethnic origin are reviewable under the Fourteenth Amendment. [Footnote 4] This Court has"consistently repudiated '[d]istinctions between citizens solely because of their ancestry' as being 'odious to a free people whose institutions are founded upon the doctrine of equality,'"Loving v. Virginia, 388 U. S. 1, 388 U. S. 11 (1967), quoting Hirabayashi v. United States, 320 U. S. 81, 320 U. S. 100 (1943). "Racial and ethnic distinctions of any sort are inherently suspect, and thus call for the most exacting judicial examination." University of California Regents v. Bakke, 438 U. S. 265, 438 U. S. 291 (1978) (opinion of POWELL, J., joined by WHITE, J.).The Court has recognized that the level of scrutiny does not change merely because the challenged classification operates against a group that historically has not been subject to governmental discrimination. Mississippi University for Women v. Hogan, 458 U. S. 718, 458 U. S. 724, n. 9 (1982); Bakke, supra, at 438 U. S. 291-299; see Shelley v. Kraemer, 334 U. S. 1, 334 U. S. 22 (1948); see also A. Bickel, The Morality of Consent 133 (1975). In this case, Article XII of the CBA operates against whites and in favor of certain minorities, and therefore constitutes a classification based on race."Any preference based on racial or ethnic criteria must necessarily receive a most searching examination to make sure that it does Page 476 U. S. 274 not conflict with constitutional guarantees."Fullilove v. Klutznick, 448 U. S. 448, 448 U. S. 491 (1980) (opinion of BURGER, C.J.). There are two prongs to this examination. First, any racial classification "must be justified by a compelling governmental interest." Palmore v. Sidoti, 466 U. S. 429, 466 U. S. 432 (1984); see Loving v. Virginia, supra, at 388 U. S. 11; cf. Graham v. Richardson, 403 U. S. 365, 403 U. S. 375 (1971) (alienage). Second, the means chosen by the State to effectuate its purpose must be "narrowly tailored to the achievement of that goal." Fullilove, supra, at 448 U. S. 480. We must decide whether the layoff provision is supported by a compelling state purpose and whether the means chosen to accomplish that purpose are narrowly tailored.IIIAThe Court of Appeals, relying on the reasoning and language of the District Court's opinion, held that the Board's interest in providing minority role models for its minority students, as an attempt to alleviate the effects of societal discrimination, was sufficiently important to justify the racial classification embodied in the layoff provision. 746 F.2d at 1156-1157. The court discerned a need for more minority faculty role models by finding that the percentage of minority teachers was less than the percentage of minority students. Id. at 1156.This Court never has held that societal discrimination alone is sufficient to justify a racial classification. Rather, the Court has insisted upon some showing of prior discrimination by the governmental unit involved before allowing limited use of racial classifications in order to remedy such discrimination. This Court's reasoning in Hazelwood School District v. United States, 433 U. S. 299 (1977), illustrates that the relevant analysis in cases involving proof of discrimination by statistical disparity focuses on those disparities that demonstrate such prior governmental discrimination. In Hazelwood, the Court concluded that, absent employment Page 476 U. S. 275 discrimination by the school board,"'nondiscriminatory hiring practices will in time result in a workforce more or less representative of the racial and ethnic composition of the population in the community from which employees are hired.'"Id. at 433 U. S. 307, quoting Teamsters v. United States, 431 U. S. 324, 431 U. S. 340, n. 20 (1977). See also 746 F.2d at 1160 (Wellford, J., concurring) ("Had the plaintiffs in this case presented data as to the percentage of qualified minority teachers in the relevant labor market to show that defendant Board's hiring of black teachers over a number of years had equalled that figure, I believe this court may well have been required to reverse. . . ."). Based on that reasoning, the Court in Hazelwood held that the proper comparison for determining the existence of actual discrimination by the school board was"between the racial composition of [the school's] teaching staff and the racial composition of the qualified public school teacher population in the relevant labor market."433 U.S. at 433 U. S. 308. Hazelwood demonstrates this Court's focus on prior discrimination as the justification for, and the limitation on, a State's adoption of race-based remedies. See also Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1 (1971).Unlike the analysis in Hazelwood, the role model theory employed by the District Court has no logical stopping point. The role model theory allows the Board to engage in discriminatory hiring and layoff practices long past the point required by any legitimate remedial purpose. Indeed, by tying the required percentage of minority teachers to the percentage of minority students, it requires just the sort of year-to-year calibration the Court stated was unnecessary in Swann, 402 U.S. at 402 U. S. 31-32:"At some point, these school authorities and others like them should have achieved full compliance with this Court's decision in Brown I. . . . Neither school authorities nor district courts are constitutionally required to make year-by-year adjustments of the racial composition Page 476 U. S. 276 of student bodies once the affirmative duty to desegregate has been accomplished and racial discrimination through official action is eliminated from the system."See also id. at 402 U. S. 24.Moreover, because the role model theory does not necessarily bear a relationship to the harm caused by prior discriminatory hiring practices, it actually could be used to escape the obligation to remedy such practices by justifying the small percentage of black teachers by reference to the small percentage of black students. See United States v. Hazelwood School District, 392 F. Supp. 1276, 1286-1287 (ED Mo.1975), rev'd, 534 F.2d 805 (CA8 1976), rev'd and remanded, 433 U. S. 299 (1977). Carried to its logical extreme, the idea that black students are better off with black teachers could lead to the very system the Court rejected in Brown v. Board of Education, 347 U. S. 483 (1954) (Brown I).Societal discrimination, without more, is too amorphous a basis for imposing a racially classified remedy. The role model theory announced by the District Court and the resultant holding typify this indefiniteness. There are numerous explanations for a disparity between the percentage of minority students and the percentage of minority faculty, many of them completely unrelated to discrimination of any kind. In fact, there is no apparent connection between the two groups. Nevertheless, the District Court combined irrelevant comparisons between these two groups with an indisputable statement that there has been societal discrimination, and upheld state action predicated upon racial classifications. No one doubts that there has been serious racial discrimination in this country. But as the basis for imposing discriminatory legal remedies that work against innocent people, societal discrimination is insufficient and overexpansive. In the absence of particularized findings, a court could uphold remedies that are ageless in their reach into the past, and timeless in their ability to affect the future. Page 476 U. S. 277BRespondents also now argue that their purpose in adopting the layoff provision was to remedy prior discrimination against minorities by the Jackson School District in hiring teachers. Public schools, like other public employers, operate under two interrelated constitutional duties. They are under a clear command from this Court, starting with Brown v. Board of Education, 349 U. S. 294 (1955), to eliminate every vestige of racial segregation and discrimination in the schools. Pursuant to that goal, race-conscious remedial action may be necessary. North Carolina State Board of Education v. Swann, 402 U. S. 43, 402 U. S. 46 (1971). On the other hand, public employers, including public schools, also must act in accordance with a "core purpose of the Fourteenth Amendment," which is to "do away with all governmentally imposed discriminations based on race." Palmore v. Sidoti, 466 U.S. at 466 U. S. 432. These related constitutional duties are not always harmonious; reconciling them requires public employers to act with extraordinary care. In particular, a public employer like the Board must ensure that, before it embarks on an affirmative action program, it has convincing evidence that remedial action is warranted. That is, it must have sufficient evidence to justify the conclusion that there has been prior discrimination.Evidentiary support for the conclusion that remedial action is warranted becomes crucial when the remedial program is challenged in court by nonminority employees. In this case, for example, petitioners contended at trial that the remedial program -- Article XII -- had the purpose and effect of instituting a racial classification that was not justified by a remedial purpose. 546 F. Supp. at 1199. In such a case, the trial court must make a factual determination that the employer had a strong basis in evidence for its conclusion that remedial action was necessary. The ultimate burden remains with the employees to demonstrate the unconstitutionality Page 476 U. S. 278 of an affirmative action program. But unless such a determination is made, an appellate court reviewing a challenge by nonminority employees to remedial action cannot determine whether the race-based action is justified as a remedy for prior discrimination.Despite the fact that Article XII has spawned years of litigation and three separate lawsuits, no such determination ever has been made. Although its litigation position was different, the Board in Jackson I and Jackson II denied the existence of prior discriminatory hiring practices. App. 33. This precise issue was litigated in both those suits. Both courts concluded that any statistical disparities were the result of general societal discrimination, not of prior discrimination by the Board. The Board now contends that, given another opportunity, it could establish the existence of prior discrimination. Although this argument seems belated at this point in the proceedings, we need not consider the question, since we conclude below that the layoff provision was not a legally appropriate means of achieving even a compelling purpose. [Footnote 5] Page 476 U. S. 279IVThe Court of Appeals examined the means chosen to accomplish the Board's race-conscious purposes under a test of "reasonableness." That standard has no support in the decisions of this Court. As demonstrated in 476 U. S. our decisions always have employed a more stringent standard -- however articulated -- to test the validity of the means chosen by a State to accomplish its race-conscious purposes. See, e.g., Palmore, supra, at 466 U. S. 432 ("[T]o pass constitutional muster, [racial classifications] must be necessary . . . to the accomplishment' of their legitimate purpose") (quoting McLaughlin v. Florida, 379 U. S. 184, 379 U. S. 196 (1964)); Fullilove, 448 U.S. at 448 U. S. 480 (opinion of BURGER, C.J.) ("We recognize the need for careful judicial evaluation to assure that any . . . program that employs racial or ethnic criteria to accomplish Page 476 U. S. 280 the objective of remedying the present effects of past discrimination is narrowly tailored to the achievement of that goal"). [Footnote 6] Under strict scrutiny, the means chosen to accomplish the State's asserted purpose must be specifically and narrowly framed to accomplish that purpose. Fullilove, 448 U.S. at 448 U. S. 480 (opinion of BURGER, C.J.). [Footnote 7] "Racial classifications are simply too pernicious to permit any but the most exact connection between justification and classification." Id. at 448 U. S. 537 (STEVENS, J., dissenting).We have recognized, however, that, in order to remedy the effects of prior discrimination, it may be necessary to take race into account. As part of this Nation's dedication to Page 476 U. S. 281 eradicating racial discrimination, innocent persons may be called upon to bear some of the burden of the remedy."When effectuating a limited and properly tailored remedy to cure the effects of prior discrimination, such a 'sharing of the burden' by innocent parties is not impermissible."Id. at 448 U. S. 484, quoting Franks v. Bowman Transportation Co., 424 U. S. 747, 424 U. S. 777 (1976). [Footnote 8] In Fullilove, the challenged Page 476 U. S. 282 statute required at least 10 percent of federal public works funds to be used in contracts with minority-owned business enterprises. This requirement was found to be within the remedial powers of Congress in part because the "actual burden' shouldered by nonminority firms is relatively light." 448 U.S. at 448 U. S. 484. [Footnote 9]Significantly, none of the cases discussed above involved layoffs. [Footnote 10] Here, by contrast, the means chosen to achieve the Board's asserted purposes is that of laying off nonminority teachers with greater seniority in order to retain minority teachers with less seniority. We have previously expressed concern over the burden that a preferential layoffs scheme imposes on innocent parties. See Firefighters v. Stotts, 467 U. S. 561, 467 U. S. 574-576, 467 U. S. 578-579 (1984); see also Steelworkers v. Weber, 443 U. S. 193, 443 U. S. 208 (1979) ("The plan does not require the discharge of white workers and their replacement with new black hirees"). In cases involving valid hiring goals, the burden to be borne by innocent individuals is diffused to a considerable extent among society generally. Though hiring goals may burden some innocent individuals, they simply do not impose the same kind of injury that layoffs impose. Denial Page 476 U. S. 283 of a future employment opportunity is not as intrusive as loss of an existing job.Many of our cases involve union seniority plans with employees who are typically heavily dependent on wages for their day-to-day living. Even a temporary layoff may have adverse financial as well as psychological effects. A worker may invest many productive years in one job and one city with the expectation of earning the stability and security of seniority."At that point, the rights and expectations surrounding seniority make up what is probably the most valuable capital asset that the worker 'owns,' worth even more than the current equity in his home."Fallon & Weiler, Conflicting Models of Racial Justice, 1984 S.Ct.Rev. 1, 58. Layoffs disrupt these settled expectations in a way that general hiring goals do not.While hiring goals impose a diffuse burden, often foreclosing only one of several opportunities, [Footnote 11] layoffs impose the entire burden of achieving racial equality on particular individuals, often resulting in serious disruption of their lives. That burden is too intrusive. We therefore hold that, as a means of accomplishing purposes that otherwise may be legitimate, the Board's layoff plan is not sufficiently narrowly tailored. [Footnote 12] Other less intrusive means of accomplishing Page 476 U. S. 284 similar purposes -- such as the adoption of hiring goals -- are available. For these reasons, the Board's selection of layoffs as the means to accomplish even a valid purpose cannot satisfy the demands of the Equal Protection Clause. [Footnote 13]VWe accordingly reverse the judgment of the Court of Appeals for the Sixth Circuit.It is so ordered

U.S. Supreme CourtWygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986)Wygant v. Jackson Board of EducationNo. 84-1340Argued November 6, 1985Decided May 19, 1986476 U.S. 267SyllabusThe collective bargaining agreement between respondent Board of Education (Board) and a teachers' union provided that, if it became necessary to lay off teachers, those with the most seniority would be retained, except that at no time would there be a greater percentage of minority personnel laid off than the current percentage of minority personnel employed at the time of the layoff. After this layoff provision was upheld in litigation arising from the Board's noncompliance with the provision, the Board adhered to it, with the result that, during certain school years, nonminority teachers were laid off, while minority teachers with less seniority were retained. Petitioners, displaced nonminority teachers, brought suit in Federal District Court, alleging violations of the Equal Protection Clause and certain federal and state statutes. Dismissing the suit on cross-motions for summary judgment, the District Court upheld the constitutionality of the layoff provision, holding that the racial preferences granted by the Board need not be grounded on a finding of prior discrimination but were permissible under the Equal Protection Clause as an attempt to remedy societal discrimination by providing "role models" for minority schoolchildren. The Court of Appeals affirmed.Held: The judgment is reversed.746 F.2d 1152, reversed.JUSTICE POWELL, joined by THE CHIEF JUSTICE, JUSTICE REHNQUIST, and JUSTICE O'CONNOR, concluded that the layoff provision violates the Equal Protection Clause. Pp. 476 U. S. 273-278.(a) In the context of affirmative action, racial classifications must be justified by a compelling state purpose, and the means chosen by the State to effectuate that purpose must be narrowly tailored. Pp. 476 U. S. 273-274.(b) Societal discrimination alone is insufficient to justify a racial classification. Rather, there must be convincing evidence of prior discrimination by the governmental unit involved before allowing limited use of racial classifications to remedy such discrimination. The "role model" theory employed by the District Court would allow the Board to engage in discriminatory hiring and layoff practices long past the point required by any legitimate remedial purpose. Moreover, it does not Page 476 U. S. 268 bear any relationship to the harm caused by prior discriminatory hiring practices. Societal discrimination, without more, is too amorphous a basis for finding race-conscious state action and for imposing a racially classified remedy. Pp. 476 U. S. 274-276.(c) If the purpose of the layoff provision was to remedy prior discrimination, as the Board claims, such purpose, to be constitutionally valid, would require the District Court to make a factual determination that the Board had a strong basis in evidence for its conclusion that remedial action was necessary. No such finding has ever been made. Pp. 476 U. S. 277-278.JUSTICE POWELL, joined by THE CHIEF JUSTICE and JUSTICE REHNQUIST, concluded that, as a means of accomplishing purposes that otherwise may be legitimate, the layoff provision is not sufficiently narrowly tailored. Other, less intrusive means of accomplishing similar purposes -- such as the adoption of hiring goals -- are available . Pp. 476 U. S. 279-284.JUSTICE WHITE concluded that respondent Board of Education's layoff policy has the same effect, and is equally violative of the Equal Protection Clause, as integrating a workforce by discharging whites and hiring blacks until the latter comprise a suitable percentage of the workforce. Pp. 476 U. S. 294-295.JUSTICE O'CONNOR concluded that the layoff provision is not "narrowly tailored" to achieve its asserted remedial purpose, because it acts to maintain levels of minority hiring set by a hiring goal that has no relation to the remedying of employment discrimination. Pp. 476 U. S. 293-294.POWELL, J., announced the judgment of the Court and delivered an opinion in which BURGER, C.J., and REHNQUIST, J., joined, and in all but Part IV of which O'CONNOR, J., joined. O'CONNOR, J., filed an opinion concurring in part and concurring in the judgment, post, p. 476 U. S. 284. WHITE, J., filed an opinion concurring in the judgment, post, p. 476 U. S. 294. MARSHALL, J., filed a dissenting opinion in which BRENNAN and BLACKMUN, JJ., joined, post, p. 476 U. S. 295. STEVENS, J., filed a dissenting opinion, post, p. 476 U. S. 313. Page 476 U. S. 269

2000_99-1185

SyllabusWashington Supreme Court has held that the Act is civil in nature, designed to incapacitate and to treat, due process requires that the conditions and duration of confinement under the Act bear some reasonable relation to the purpose for which persons are committed. E. g., Foucha v. Louisiana, 504 U. S. 71, 79. Finally, the Court notes that an action under 42 U. S. C. § 1983 is pending against the Center and that the Center operates under an injunction requiring it to take steps to improve confinement conditions. Pp. 265-266.(c) This case gives the Court no occasion to consider how a confinement scheme's civil nature relates to other constitutional challenges, such as due process, or to consider the extent to which a court may look to actual conditions of confinement and implementation of the statute to determine in the first instance whether a confinement scheme is civil in nature. Whether such a scheme is punitive has been the threshold question for some constitutional challenges. See, e. g., Allen, supra. However, the Court has not squarely addressed the relevance of confinement conditions to a first instance determination, and that question need not be resolved here. Pp. 266-267.192 F.3d 870, reversed and remanded.O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and SCALIA, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. SCALIA, J., filed a concurring opinion, in which SOUTER, J., joined, post, p. 267. THOMAS, J., filed an opinion concurring in the judgment, post, p.270. STEVENS, J., filed a dissenting opinion, post, p. 274.Maureen Hart, Senior Assistant Attorney General of Washington, argued the cause for petitioner. With her on the briefs were Christine O. Gregoire, Attorney General, Sarah Blackman Sappington, Assistant Attorney General, David J. W Hackett, Special Assistant Attorney General, and William Berggren Collins, Senior Assistant Attorney General.Robert C. Boruchowitz argued the cause for respondent.With him on the briefs were David B. Hirsch, Dennis P. Carroll, and Christine Jackson.** A brief of amici curiae urging reversal was filed for the State of Kansas et al. by Carla J. Stovall, Attorney General of Kansas, Stephen R. McAllister, State Solicitor, and Jared S. Maag, Assistant Attorney Gen-253JUSTICE O'CONNOR delivered the opinion of the Court. Washington State's Community Protection Act of 1990 authorizes the civil commitment of "sexually violent predators," persons who suffer from a mental abnormality or personality disorder that makes them likely to engage in predatory acts of sexual violence. Wash. Rev. Code § 71.09.010 et seq. (1992). Respondent, Andre Brigham Young, is confined as a sexually violent predator at the Special Commitment Center (Center), for which petitioner is the superintendent. After respondent's challenges to his commitment in state court proved largely unsuccessful, he instituted a habeas action under 28 U. S. C. § 2254, seeking release from confinement. The Washington Supreme Court had already held that the Act is civil, In re Young, 122 Wash. 2d 1, 857 P. 2d 989 (1993) (en bane), and this Court held a similar commitment scheme for sexually violent predators in Kansas to be civil on its face, Kansas v. Hendricks, 521 U. S. 346 (1997). The Court of Appeals for the Ninth Circuit nevertheless concluded that respondent could challenge the statute as being punitive "as applied" to him in violation of theeral, and by the Attorneys General for their respective States as follows:Bill Pryor of Alabama, Janet Napolitano of Arizona, Mark Pryor of Arkansas, Bill Lockyer of California, Ken Salazar of Colorado, Robert A. Butterworth of Florida, James E. Ryan of Illinois, Thomas J. Miller of Iowa, Richard P. Ieyoub of Louisiana, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, 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, John J. Farmer, Jr., of New Jersey, Heidi Heitkamp of North Dakota, Betty D. Montgomery of Ohio, W A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, D. Michael Fisher of Pennsylvania, Charles M. Condon of South Carolina, Mark Barnett of South Dakota, Jan Graham of Utah, Mark L. Earley of Virginia, and James E. Doyle of Wisconsin.Briefs of amici curiae urging affirmance were filed for the California Atascadero State Hospital Section 6600 Civil Committees by Joel E. Krischer; and for the National Association of Criminal Defense Lawyers by Edward M. Chikofsky and Barbara E. Bergman.254Double Jeopardy and Ex Post Facto Clauses, and remanded the case to the District Court for an evidentiary hearing.I AWashington State's Community Protection Act of 1990 (Act) was a response to citizens' concerns about laws and procedures regarding sexually violent offenders. One of the Act's provisions authorizes civil commitment of such offenders. Wash. Rev. Code § 71.09.010 et seq. (1992 and Supp. 2000). The Act defines a sexually violent predator as someone who has been convicted of, or charged with, a crime of sexual violence and who suffers from a mental abnormality or personality disorder that makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility. § 71.09.020(1) (Supp. 2000). The statute reaches prisoners, juveniles, persons found incompetent to stand trial, persons found not guilty by reason of insanity, and persons at any time convicted of a sexually violent offense who have committed a recent overt act. § 71.09.030. Generally, when it appears that a person who has committed a sexually violent offense is about to be released from confinement, the prosecuting attorney files a petition alleging that that person is a sexually violent predator. Ibid. That filing triggers a process for charging and trying the person as a sexually violent predator, during which he is afforded a panoply of protections including counsel and experts (paid for by the State in cases ofindigency), a probable cause hearing, and trial by judge or jury at the individual's option. §§ 71.09.040-71.09.050. At trial, the State bears the burden to prove beyond a reasonable doubt that the person is a sexually violent predator. § 71.09.060(1).Upon the finding that a person is a sexually violent predator, he is committed for control, care, and treatment to the custody of the department of social and health services. Ibid. Once confined, the person has a right to adequate care255and individualized treatment. § 71.09.080(2). The person is also entitled to an annual examination of his mental condition. § 71.09.070. If that examination indicates that the individual's condition is so changed that he is not likely to engage in predatory acts of sexual violence, state officials must authorize the person to petition the court for conditional release or discharge. § 71.09.090(1). The person is entitled to a hearing at which the State again bears the burden of proving beyond a reasonable doubt that he is not safe to be at large. Ibid. The person may also independently petition the court for release. § 71.09.090(2). At a show cause hearing, if the court finds probable cause to believe that the person is no longer dangerous, a full hearing will be held at which the State again bears the burden of proof. Ibid.The Act also provides a procedure to petition for conditional release to a less restrictive alternative to confinement. § 71.09.090. Before ordering conditional release, the court must find that the person will be treated by a state certified sexual offender treatment provider, that there is a specific course of treatment, that housing exists that will be sufficiently secure to protect the community, and that the person is willing to comply with the treatment and supervision requirements. § 71.09.092. Conditional release is subject to annual review until the person is unconditionally released. §§ 71.09.096, 71.09.098.BRespondent, Andre Brigham Young, was convicted of six rapes over three decades. App. to Pet. for Cert. 33a. Young was scheduled to be released from prison for his most recent conviction in October 1990. One day prior to his scheduled release, the State filed a petition to commit Young as a sexually violent predator. Id., at 32a.At the commitment hearing, Young's mental health experts testified that there is no mental disorder that makes a person likely to reoffend and that there is no way to predict accurately who will reoffend. The State called an expert256who testified, based upon a review of Young's records, that Young suffered from a severe personality disorder not otherwise specified with primarily paranoid and antisocial features, and a severe paraphilia, which would be classified as either paraphilia sexual sadism or paraphilia not otherwise specified (rape). See generally American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 522-523, 530, 532, 634, 645-646, 673 (4th ed. 1994). In the state expert's opinion, severe paraphilia constituted a mental abnormality under the Act. The State's expert concluded that Young's condition, in combination with the personality disorder, the span of time during which Young committed his crimes, his recidivism, his persistent denial, and his lack of empathy or remorse, made it more likely than not that he would commit further sexually violent acts. The victims of Young's rapes also testified. The jury unanimously concluded that Young was a sexually violent predator.Young and another individual appealed their commitments in state court, arguing that the Act violated the Double Jeopardy, Ex Post Facto, Due Process, and Equal Protection Clauses of the Federal Constitution. In major respects, the Washington Supreme Court held that the Act is constitutional. In re Young, 122 Wash. 2d 1, 857 P. 2d 989 (1993) (en bane). To the extent the court concluded that the Act violated due process and equal protection principles, those rulings are reflected in subsequent amendments to the Act. See Part I-A, supra.The Washington court reasoned that the claimants' double jeopardy and ex post facto claims hinged on whether the Act is civil or criminal in nature. Following this Court's precedents, the court examined the language of the Act, the legislative history, and the purpose and effect of the statutory scheme. The court found that the legislature clearly intended to create a civil scheme both in the statutory language and legislative history. The court then turned to257examine whether the actual impact of the Act is civil or criminal. The Act, the court concluded, is concerned with treating committed persons for a current mental abnormality, and protecting society from the sexually violent acts associated with that abnormality, rather than being concerned with criminal culpability. The court distinguished the goals of incapacitation and treatment from the goal of punishment. The court found that the Washington Act is designed to further legitimate goals of civil confinement and that the claimants had failed to provide proof to the contrary. 122 Wash. 2d, at 18-25, 857 P. 2d, at 996-1000.The Act spawned several other challenges in state and federal court, two of which bear mention. Richard Turay, committed as a sexually violent predator, filed suit in Federal District Court against Center officials under Rev. Stat. § 1979, 42 U. S. C. § 1983, alleging unconstitutional conditions of confinement and inadequate treatment at the Center. In 1994, a jury concluded that the Center had failed to provide constitutionally adequate mental health treatment. App. 64-68. The court ordered officials at the Center to bring the institution up to constitutional standards, appointing a Special Master to monitor progress at the Center. The Center currently operates under an injunction. Turay v. Seling, 108 F. Supp. 2d 1148 (WD Wash. 2000). See also Brief for Petitioner 8-9.Turay also appealed his commitment as a sexually violent predator in state court, claiming, among other things, that the conditions of confinement at the Center rendered the Washington Act punitive "as applied" to him in violation of the Double Jeopardy Clause. The Washington Supreme Court ruled that Turay's commitment was valid. In re Turay, 139 Wash. 2d 379, 986 P. 2d 790 (1999) (en banc). The court explained that in Young, it had concluded that the Act is civil. 139 Wash. 2d, at 415, 986 P. 2d, at 809. The court also noted that this Court had recently held Kansas' Sexually Violent Predator Act, nearly identical to Washington's Act,258to be civil on its face. Ibid. The Washington Supreme Court rejected Turay's theory of double jeopardy, reasoning that the double jeopardy claim must be resolved by asking whether the Act itself is civil. Id., at 416-417, 986 P. 2d, at 810 (citing Hudson v. United States, 522 U. S. 93 (1997)). The court concluded that Turay's proper remedy for constitutional violations in conditions of confinement at the Center was his § 1983 action for damages and injunctive relief. 139 Wash. 2d, at 420, 986 P. 2d, at 812.CThat brings us to the action before this Court. In 1994, after unsuccessful challenges to his confinement in state court, Young filed a habeas action under 28 U. S. C. § 2254 against the superintendent of the Center. Young contended that the Act was unconstitutional and that his confinement was illegal. He sought immediate release. The District Court granted the writ, concluding that the Act violated substantive due process, that the Act was criminal rather than civil, and that it violated the double jeopardy and ex post facto guarantees of the Constitution. Young v. Weston, 898 F. Supp. 744 (WD Wash. 1995). The superintendent appealed. While the appeal was pending, this Court decided Kansas v. Hendricks, 521 U. S. 346 (1997), which held that Kansas' Sexually Violent Predator Act, on its face, met substantive due process requirements, was nonpunitive, and thus did not violate the Double Jeopardy and Ex Post Facto Clauses. The Ninth Circuit Court of Appeals remanded Young's case to the District Court for reconsideration in light of Hendricks. 122 F.3d 38 (1997).On remand, the District Court denied Young's petition.Young appealed and the Ninth Circuit reversed and remanded in part and affirmed in part. 192 F.3d 870 (1999). The Ninth Circuit affirmed the District Court's ruling that Young's confinement did not violate the substantive due process requirement that the State prove mental illness259and dangerousness to justify confinement. Id., at 876. The Court of Appeals also left undisturbed the District Court's conclusion that the Act meets procedural due process and equal protection guarantees, and the District Court's rejection of Young's challenges to his commitment proceedings. Id., at 876-877. Young did not seek a petition for a writ of certiorari to the Ninth Circuit for its decision affirming the District Court in these respects, and accordingly, those issues are not before this Court.The Ninth Circuit reversed the District Court's determination that because the Washington Act is civil, Young's double jeopardy and ex post facto claims must fail. The "linchpin" of Young's claims, the court reasoned, was whether the Act was punitive "as applied" to Young. Id., at 873. The court did not read this Court's decision in Hendricks to preclude the possibility that the Act could be punitive as applied. The court reasoned that actual conditions of confinement could divest a facially valid statute of its civil label upon a showing by the clearest proof that the statutory scheme is punitive in effect. 192 F. 3d, at 874.The Court of Appeals reviewed Young's claims that conditions of confinement at the Center were punitive and did not comport with due process. Id., at 875. Young alleged that for seven years, he had been subject to conditions more restrictive than those placed on true civil commitment detainees, and even state prisoners. The Center, located wholly within the perimeter of a larger Department of Corrections (DOC) facility, relied on the DOC for a host of essential services, including library services, medical care, food, and security. More recently, Young claimed, the role of the DOC had increased to include daily security "walk-throughs." Young contended that the conditions and restrictions at the Center were not reasonably related to a legitimate nonpunitive goal, as residents were abused, confined to their rooms, subjected to random searches of their rooms and units, and placed under excessive security.260Young also contended that conditions at the Center were incompatible with the Act's treatment purpose. The Center had a policy of videotaping therapy sessions and withholding privileges for refusal to submit to treatment. The Center residents were housed in units that, according to the Special Master in the Turay litigation, were clearly inappropriate for persons in a mental health treatment program. The Center still lacked certified sex offender treatment providers. Finally, there was no possibility of release. A courtappointed resident advocate and psychologist concluded in his final report that because the Center had not fundamentally changed over so many years, he had come to suspect that the Center was designed and managed to punish and confine individuals for life without any hope of release to a less restrictive setting. 192 F. 3d, at 875. See also Amended Petition for Writ of Habeas Corpus, Supplemental Brief on Remand, and Motion to Alter Judgment 4-5, 8-9, 11-12, 15, 20, 24-26, in No. C94-480C (WD Wash.), Record, Doc. Nos. 57, 155, and 167.The Ninth Circuit concluded that "[b]y alleging that [the Washington Act] is punitive as applied, Young alleged facts which, if proved, would entitle him to relief." 192 F. 3d, at 875. The court remanded the case to the District Court for a hearing to determine whether the conditions at the Center rendered the Act punitive as applied to Young. Id., at 876.This Court granted the petition for a writ of certiorari, 529 U. S. 1017 (2000), to resolve the conflict between the Ninth Circuit Court of Appeals and the Washington Supreme Court. Compare 192 F.3d 870 (1999), with In re Turay, 139 Wash. 2d 379, 986 P. 2d 790 (1999).IIAs the Washington Supreme Court held and the Ninth Circuit acknowledged, we proceed on the understanding that the Washington Act is civil in nature. The Washington Act is strikingly similar to a commitment scheme we reviewed261four Terms ago in Kansas v. Hendricks, 521 U. S. 346 (1997). In fact, Kansas patterned its Act after Washington's. See In re Hendricks, 259 Kan. 246, 249, 912 P. 2d 129, 131 (1996). In Hendricks, we explained that the question whether an Act is civil or punitive in nature is initially one of statutory construction. 521 U. S., at 361 (citing Allen v. Illinois, 478 U. S. 364, 368 (1986)). A court must ascertain whether the legislature intended the statute to establish civil proceedings. A court will reject the legislature's manifest intent only where a party challenging the Act provides the clearest proof that the statutory scheme is so punitive in either purpose or effect as to negate the State's intention. 521 U. S., at 361 (citing United States v. Ward, 448 U. S. 242, 248-249 (1980)). We concluded that the confined individual in that case had failed to satisfy his burden with respect to the Kansas Act. We noted several factors: The Act did not implicate retribution or deterrence; prior criminal convictions were used as evidence in the commitment proceedings, but were not a prerequisite to confinement; the Act required no finding of scienter to commit a person; the Act was not intended to function as a deterrent; and although the procedural safeguards were similar to those in the criminal context, they did not alter the character of the scheme. 521 U. S., at 361-365.We also examined the conditions of confinement provided by the Act. Id., at 363-364. The Court was aware that sexually violent predators in Kansas were to be held in a segregated unit within the prison system. Id., at 368. We explained that the Act called for confinement in a secure facility because the persons confined were dangerous to the community. Id., at 363. We noted, however, that conditions within the unit were essentially the same as conditions for other involuntarily committed persons in mental hospitals. Ibid. Moreover, confinement under the Act was not necessarily indefinite in duration. Id., at 364. Finally, we observed that in addition to protecting the public, the Act also provided treatment for sexually violent predators. Id.,262at 365-368. We acknowledged that not all mental conditions were treatable. For those individuals with untreatable conditions, however, we explained that there was no federal constitutional bar to their civil confinement, because the State had an interest in protecting the public from dangerous individuals with treatable as well as untreatable conditions. Id., at 366. Our conclusion that the Kansas Act was "nonpunitive thus remove[d] an essential prerequisite for both Hendricks' double jeopardy and ex post facto claims." Id., at 369.Since deciding Hendricks, this Court has reaffirmed the principle that determining the civil or punitive nature of an Act must begin with reference to its text and legislative history. Hudson v. United States, 522 U. S. 93 (1997). In Hudson, which involved a double jeopardy challenge to monetary penalties and occupational debarment, this Court expressly disapproved of evaluating the civil nature of an Act by reference to the effect that Act has on a single individual. Instead, courts must evaluate the question by reference to a variety of factors "'considered in relation to the statute on its face'''; the clearest proof is required to override legislative intent and conclude that an Act denominated civil is punitive in purpose or effect. Id., at 100 (quoting KennedyWith this in mind, we turn to the Court of Appeals' determination that respondent could raise an "as-applied" challenge to the Act on double jeopardy and ex post facto grounds and seek release from confinement. Respondent essentially claims that the conditions of his confinement at the Center are too restrictive, that the conditions are incompatible with treatment, and that the system is designed to result in indefinite confinement. Respondent's claims are in many respects like the claims presented to the Court in Hendricks, where we concluded that the conditions of confinement were largely explained by the State's goal to incapacitate, not to punish. 521 U. S., at 362-368. Nevertheless,263we do not deny that some of respondent's allegations are serious. Nor do we express any view as to how his allegations would bear on a court determining in the first instance whether Washington's confinement scheme is civil. Here, we evaluate respondent's allegations as presented in a double jeopardy and ex post facto challenge under the assumption that the Act is civil.We hold that respondent cannot obtain release through an "as-applied" challenge to the Washington Act on double jeopardy and ex post facto grounds. We agree with petitioner that an "as-applied" analysis would prove unworkable. Such an analysis would never conclusively resolve whether a particular scheme is punitive and would thereby prevent a final determination of the scheme's validity under the Double Jeopardy and Ex Post Facto Clauses. Brief for Petitioner 30; Reply Brief for Petitioner 9. Unlike a fine, confinement is not a fixed event. As petitioner notes, it extends over time under conditions that are subject to change. The particular features of confinement may affect how a confinement scheme is evaluated to determine whether it is civil rather than punitive, but it remains no less true that the query must be answered definitively. The civil nature of a confinement scheme cannot be altered based merely on vagaries in the implementation of the authorizing statute.Respondent contends that the Ninth Circuit's "as-applied" analysis comports with this Court's precedents. He points out that this Court has considered conditions of confinement in evaluating the validity of confinement schemes in the past. Brief for Respondent 11-16, 29 (citing Hendricks, supra, at 363; Reno v. Flores, 507 U. S. 292, 301-302 (1993); United States v. Salerno, 481 U. S. 739, 747-748 (1987); Allen v. Illinois, supra, at 373-374; Schall v. Martin, 467 U. S. 253, 269273 (1984)). All of those cases, however, presented the question whether the Act at issue was punitive. Permitting respondent's as-applied challenge would invite an end run around the Washington Supreme Court's decision that the264Act is civil in circumstances where a direct attack on that decision is not before this Court.JUSTICE THOMAS, concurring in the judgment, takes issue with our view that the question before the Court concerns an as-applied challenge to a civil Act. He first contends that respondent's challenge is not a true "as-applied" challenge because respondent does not claim that the statute "'by its own terms' is unconstitutional as applied ... but rather that the statute is not being applied according to its terms at all." Post, at 271. We respectfully disagree. The Act requires "adequate care and individualized treatment," Wash. Rev. Code § 71.09.080(2) (Supp. 2000), but the Act is silent with respect to the confinement conditions required at the Center, and that is the source of many of respondent's complaints, see supra, at 259-260. JUSTICE THOMAS next contends that we incorrectly assume that the Act is civil, instead of viewing the Act as "'otherwise ... civil,' or civil 'on its face.'" Post, at 270 (emphasis added by THOMAS, J.). However the Washington Act is described, our analysis in this case turns on the prior finding by the Washington Supreme Court that the Act is civil, and this Court's decision in Hendricks that a nearly identical Act was civil. Petitioner could not have claimed that the Washington Act is "otherwise" or "facially" civil without relying on those prior decisions.In dissent, JUSTICE STEVENS argues that we "incorrectly assum[eJ" that the Act is "necessarily civil," post, at 275, but the case has reached this Court under that very assumption. The Court of Appeals recognized that the Act is civil, and treated respondent's claim as an individual, "as-applied" challenge to the Act. The Court of Appeals then remanded the case to the District Court for an evidentiary hearing to determine respondent's conditions of confinement. Contrary to the dissent's characterization of the case, the Court of Appeals did not purport to undermine the validity of the Washington Act as a civil confinement scheme. The court did not conclude that respondent's allegations, if substanti-265ated, would be sufficient to refute the Washington Supreme Court's conclusion that the Act is civil, and to require the release of all those confined under its authority. The Ninth Circuit addressed only respondent's individual case, and we do not decide claims that are not presented by the decision below. Matsushita Elec. Industrial Co. v. Epstein, 516 U. S. 367, 379 (1996). We reject the Ninth Circuit's "asapplied" analysis for double jeopardy and ex post facto claims as fundamentally flawed.IIIOur decision today does not mean that respondent and others committed as sexually violent predators have no remedy for the alleged conditions and treatment regime at the Center. The text of the Washington Act states that those confined under its authority have the right to adequate care and individualized treatment. Wash. Rev. Code § 71.09.080(2) (Supp. 2000); Brief for Petitioner 14. As petitioner acknowledges, if the Center fails to fulfill its statutory duty, those confined may have a state law cause of action. Tr. of Oral Arg. 6, 10-11, 52. It is for the Washington courts to determine whether the Center is operating in accordance with state law and provide a remedy.State courts, in addition to federal courts, remain competent to adjudicate and remedy challenges to civil confinement schemes arising under the Federal Constitution. As noted above, the Washington Supreme Court has already held that the Washington Act is civil in nature, designed to incapacitate and to treat. In re Young, 122 Wash. 2d, at 18-25, 857 P. 2d, at 996-1000. Accordingly, due process requires that the conditions and duration of confinement under the Act bear some reasonable relation to the purpose for which persons are committed. Foucha v. Louisiana, 504 U. S. 71, 79 (1992); Youngberg v. Romeo, 457 U. S. 307, 324 (1982); Jackson v. Indiana, 406 U. S. 715, 738 (1972).Finally, we note that a § 1983 action against the Center is pending in the Western District of Washington. See supra,266at 257. The Center operates under an injunction that requires it to adopt and implement a plan for training and hiring competent sex offender therapists; to improve relations between residents and treatment providers; to implement a treatment program for residents containing elements required by prevailing professional standards; to develop individual treatment programs; and to provide a psychologist or psychiatrist expert in the diagnosis and treatment of sex offenders to supervise the staff. App. 67. A Special Master has assisted in bringing the Center into compliance with the injunction. In its most recent published opinion on the matter, the District Court noted some progress at the Center in meeting the requirements of the injunction. Turay v. Seling, 108 F. Supp. 2d, at 1154-1155.This case gives us no occasion to consider how the civil nature of a confinement scheme relates to other constitutional challenges, such as due process, or to consider the extent to which a court may look to actual conditions of confinement and implementation of the statute to determine in the first instance whether a confinement scheme is civil in nature. JUSTICE SCALIA, concurring, contends that conditions of confinement are irrelevant to determining whether an Act is civil unless state courts have interpreted the Act as permitting those conditions. By contrast, JUSTICE STEVENS would consider conditions of confinement at any time in order to gain "full knowledge of the effects of the statute." Post, at 277.Whether a confinement scheme is punitive has been the threshold question for some constitutional challenges. See, e. g., Kansas v. Hendricks, 521 U. S. 346 (1997) (double jeopardy and ex post facto); United States v. Salerno, 481 U. S. 739 (1987) (due process); Allen v. Illinois, 478 U. S. 364 (1986) (Fifth Amendment privilege against self-incrimination). Whatever these cases may suggest about the relevance of conditions of confinement, they do not endorse the approach of the dissent, which would render the inquiry into the "ef-267fects of the statute," post, at 277, completely open ended. In one case, the Court refused to consider alleged confinement conditions because the parties had entered into a consent decree to improve conditions. Flores, 507 U. S., at 30l. The Court presumed that conditions were in compliance with the requirements of the consent decree. Ibid. In another case, the Court found that anecdotal case histories and a statistical study were insufficient to render a regulatory confinement scheme punitive. Martin, 467 U. S., at 272. In such cases, we have decided whether a confinement scheme is punitive notwithstanding the inherent difficulty in ascertaining current conditions and predicting future events.We have not squarely addressed the relevance of conditions of confinement to a first instance determination, and that question need not be resolved here. An Act, found to be civil, cannot be deemed punitive "as applied" to a single individual in violation of the Double Jeopardy and Ex Post Facto Clauses and provide cause for release.The judgment of the United States Court of Appeals for the Ninth Circuit is therefore reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 2000SyllabusSELING, SUPERINTENDENT, SPECIAL COMMITMENT CENTER v. YOUNGCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITNo. 99-1185. Argued October 31, 2000-Decided January 17,2001Washington State's Community Protection Act of 1990 (Act) authorizes the civil commitment of "sexually violent predators," persons who suffer from a mental abnormality or personality disorder that makes them likely to engage in predatory acts of sexual violence. Respondent Young is confined under the Act at the Special Commitment Center (Center), for which petitioner is the superintendent. Young's challenges to his commitment in state court proved largely unsuccessful. Young then instituted a habeas action under 28 U. S. C. § 2254, seeking release from confinement. The District Court initially granted the writ, concluding that the Act was unconstitutional. While the superintendent's appeal was pending, this Court decided Kansas v. Hendricks, 521 U. S. 346, holding that a similar commitment scheme, Kansas' Sexually Violent Predator Act, on its face, met substantive due process requirements, was nonpunitive, and thus did not violate the Double Jeopardy and Ex Post Facto Clauses. The Ninth Circuit remanded for reconsideration in light of Hendricks. The District Court then denied Young's petition. In particular, the District Court determined that, because the Washington Act is civil, Young's double jeopardy and ex post facto claims must fail. The Ninth Circuit reversed that ruling. The "linchpin" of Young's claims, the court reasoned, was whether the Act was punitive "as applied" to Young. The court did not read Hendricks to preclude the possibility that the Act could be punitive as applied. Reasoning that actual confinement conditions could divest a facially valid statute of its civil label upon a showing by the clearest proof that the statutory scheme is punitive in effect, the court remanded the case for the District Court to determine whether the conditions at the Center rendered the Act punitive as applied to Young.Held: An Act, found to be civil, cannot be deemed punitive "as applied" to a single individual in violation of the Double Jeopardy and Ex Post Facto Clauses and provide cause for release. Pp. 260-267.(a) Respondent cannot obtain release through an "as-applied" challenge to the Act on double jeopardy and ex post facto grounds. The Act is strikingly similar to, and, in fact, was the pattern for, the Kansas Act upheld in Hendricks. Among other things, the Court there applied251the principle that determining the civil or punitive nature of an Act must begin with reference to its text and legislative history. See 521 U. S., at 360-369. Subsequently, the Court expressly disapproved of evaluating an Act's civil nature by reference to its effect on a single individual, holding, instead, that courts must focus on a variety of factors considered in relation to the statute on its face, and that the clearest proof is required to override legislative intent and conclude that an Act denominated civil is punitive in purpose or effect. Hudson v. United States, 522 U. S. 93, 100. With this in mind, the Ninth Circuit's "asapplied" analysis for double jeopardy and ex post facto claims must be rejected as fundamentally flawed. This Court does not deny the seriousness of some of respondent's allegations. Nor does the Court express any view as to how his allegations would bear on a court determining in the first instance whether Washington's confinement scheme is civil. Here, however, the Court evaluates respondent's allegations under the assumption that the Act is civil, as the Washington Supreme Court held and the Ninth Circuit acknowledged. The Court agrees with petitioner that an "as-applied" analysis would prove unworkable. Such an analysis would never conclusively resolve whether a particular scheme is punitive and would thereby prevent a final determination of the scheme's validity under the Double Jeopardy and Ex Post Facto Clauses. Confinement is not a fixed event, but extends over time under conditions that are subject to change. The particular features of confinement may affect how a confinement scheme is evaluated to determine whether it is civil or punitive, but it remains no less true that the query must be answered definitively. A confinement scheme's civil nature cannot be altered based merely on vagaries in the authorizing statute's implementation. The Ninth Circuit's "as-applied" analysis does not comport with precedents in which this Court evaluated the validity of confinement schemes. See, e. g., Allen v. Illinois, 478 U. S. 364, 373-374. Such cases presented the question whether the Act at issue was punitive, whereas permitting respondent's as-applied challenge would invite an end run around the Washington Supreme Court's decision that the Act is civil when that decision is not before this Court. pp. 260-265.(b) Today's decision does not mean that respondent and others committed as sexually violent predators have no remedy for the alleged conditions and treatment regime at the Center. The Act gives them the right to adequate care and individualized treatment. It is for the Washington courts to determine whether the Center is operating in accordance with state law and provide a remedy. Those courts also remain competent to adjudicate and remedy challenges to civil confinement schemes arising under the Federal Constitution. Because the252Full Text of Opinion

1970_108

MR. JUSTICE BLACKMUN delivered the opinion of the Court.In 1966 Pedro Perales, a San Antonio truck driver, then aged 34, height 5' 11", weight about 220 pounds, filed a claim for disability insurance benefits under the Social Security Act. Sections 216(i)(1), 68 Stat. 1080, and 223(d)(1), 81 Stat. 868, of that Act, 42 U.S.C. § 416(i)(1) and 42 U.S.C. § 423(d)(1) (1964 ed.. Supp. V), both provide that the term "disability" means "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which. . . ." [Footnote 1] Section 205(g), 42 U.S.C. § 405(g), relating to judicial review, states, "The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive. . . ."The issue here is whether physicians' written reports of medical examinations they have made of a disability claimant may constitute "substantial evidence" supportive of a finding of nondisability, within the § 205(g) standard, when the claimant objects to the admissibility of those reports and when the only live testimony is presented by his side and is contrary to the reports.IIn his claim Perales asserted that, on September 29, 1965, he became disabled as a result of an injury to his back sustained in lifting an object at work. He was seen by a neurosurgeon, Dr. Ralph A. Munslow, who first recommended conservative treatment. When this provided no relief, myelography was performed and surgery for a possible protruded intervertebral disc at 5 was advised. The patient at first hesitated about surgery Page 402 U. S. 391 and appeared to improve. On recurrence of pain, however, he consented to the recommended procedure. Dr. Munslow operated on November 23. The surgical note is in the margin. [Footnote 2] No disc protrusion or other definitive pathology was identified at surgery. The post-operative diagnosis was: "Nerve root compression syndrome, left." The patient was discharged from Dr. Munslow's care on January 25, 1966, with a final diagnosis of "Neuritis, lumbar, mild."Mr. Perales continued to complain, but Dr. Munslow and Dr. Morris H. Lampert, a neurologist called in consultation, were still unable to find any objective neurological explanation for his complaints. Dr. Munslow advised that he return to work.In April, 1966, Perales consulted Dr. Max Morales, Jr., a general practitioner of San Antonio. Dr. Morales hospitalized the patient from April 15 to May 2. His final Page 402 U. S. 392 discharge diagnosis was: "Back sprain, lumbo-sacral spine."Perales then filed his claim. As required by § 221 of the Act, 42 U.S.C. § 421, the claim was referred to the state agency for determination. The agency obtained the hospital records and a report from Dr. Morales. The report set forth no physical findings or laboratory studies, but the doctor again gave as his diagnosis: "Back sprain -- lumbo-sacral spine," this time "moderately severe," with "Ruptured disk not ruled out." The agency arranged for a medical examination, at no cost to the patient, by Dr. John H. Langston, an orthopedic surgeon. This was done May 25.Dr. Langston's ensuing report to the Division of Disability Determination was devastating from the claimant's standpoint. The doctor referred to Perales' being "on crutches or cane" since his injury. He noted a slightly edematous condition in the legs, attributed to "inactivity and sitting around"; slight tenderness in some of the muscles of the dorsal spine, thought to be due to poor posture; and "a very mild sprain [of those muscles] which would resolve were he actually to get a little exercise and move." Apart from this, and from the residuals of the pantopaque myelography and hemilaminectomy, Dr. Langston found no abnormalities of the lumbar spine. Otherwise, he described Perales as a"big physical healthy specimen . . . obviously holding back and limiting all of his motions, intentionally. . . . His upper extremities, though they are completely uninvolved by his injury, he holds very rigidly as though he were semiparalyzed. His reach and grasp are very limited, but intentionally so. . . . Neurological examination is entirely normal to detailed sensory examination with pinwheel, vibratory sensations, and light touch. Reflexes are very active, and there is no atrophy anywhere."The Page 402 U. S. 393 orthopedist's summarization, impression, and prognosis are in the margin. [Footnote 3]The state agency denied the claim. Perales requested reconsideration. Dr. Morales submitted a further report to the agency and an opinion to the claimant's attorney. This outlined the surgery and hospitalizations and his own conservative and continuing treatment of the patient, the medicines prescribed, the administration of ultrasound therapy, and the patient's constant complaints. The doctor concluded that the patient had not made a complete recovery from his surgery, that he was not malingering, that his injury was permanent, and that he was totally and permanently disabled. [Footnote 4] He recommended against any further surgery. Page 402 U. S. 394The state agency then arranged for an examination by Dr. James M. Bailey, a board-certified psychiatrist with a subspecialty in neurology. Dr. Bailey's report to the agency on August 30, 1966, concluded with the following diagnosis:"Paranoid personality, manifested by hostility, feelings of persecution, and long history of strained interpersonal relationships.""I do not feel that this patient has a separate psychiatric illness at this time. It appears that his personality is conducive to anger, frustrations, etc."The agency again reviewed the file. The Bureau of Disability Insurance of the Social Security Administration made its independent review. The report and opinion of Dr. Morales, as the claimant's attending physician, were considered, as were those of the other examining physicians. The claim was again denied.Perales requested a hearing before a hearing examiner. The agency then referred the claimant to Dr. Langston and to Dr. Richard H. Mattson for electromyography studies. Dr. Mattson's notes referred to "some chronic or past disturbance of function in the nerve supply" to the left and right anterior tibialis muscles and right Page 402 U. S. 395 extensor digitorium brevis muscles that was "strongly suggestive of lack of maximal effort" and was "the kind of finding that is typically associated with a functional or psychogenic component to weakness." There was no evidence of "any active process effecting [sic] the nerves at present." Dr. Langston advised the agency that Dr. Mattson's finding of "very poor effort" verified what Dr. Langston had found on the earlier physical examination.The requested hearing was set for January 12, 1967, in San Antonio. Written notice thereof was given the claimant with a copy to his attorney. The notice contained a definition of disability, advised the claimant that he should bring all medical and other evidence not already presented, afforded him an opportunity to examine all documentary evidence on file prior to the hearing, and told him that he might bring his own physician or other witnesses and be represented at the hearing by a lawyer.The hearing took place at the time designated. A supplemental hearing was held March 31. The claimant appeared at the first hearing with his attorney and with Dr. Morales. The attorney formally objected to the introduction of the several reports of Drs. Langston, Bailey, Mattson, and Lampert, and of the hospital records. Various grounds of objection were asserted, including hearsay, absence of an opportunity for cross-examination, absence of proof the physicians were licensed to practice in Texas, failure to demonstrate that the hospital records were proved under the Business Records Act, and the conclusory nature of the reports. These objections were overruled, and the reports and hospital records were introduced. The reports of Dr. Morales and of Dr. Munslow were then submitted by the claimant's counsel and admitted.At the two hearings, oral testimony was submitted by claimant Perales, by Dr. Morales, by a former fellow Page 402 U. S. 396 employee of the claimant, by a vocational expert, and by Dr. Lewis A. Leavitt, a physician board-certified in physical medicine and rehabilitation, and chief of, and professor in, the Department of Physical Medicine at Baylor University College of Medicine. Dr. Leavitt was called by the hearing examiner as an independent "medical adviser," that is, as an expert who does not examine the claimant but who hears and reviews the medical evidence and who may offer an opinion. The adviser is paid a fee by the Government. The claimant, through his counsel, objected to any testimony by Dr. Leavitt not based upon examination or upon a hypothetical. Dr. Leavitt testified over this objection and was cross-examined by the claimant's attorney. He stated that the consensus of the various medical reports was that Perales had a mild low-back syndrome of musculo-ligamentous origin.The hearing examiner, in reliance upon the several medical reports and the testimony of Dr. Leavitt, observed in his written decision,"There is objective medical evidence of impairment, which the heavy preponderance of the evidence indicates to be of mild severity. . . . Taken altogether, the Hearing Examiner is of the conclusion that the claimant has not met the burden of proof."He specifically found that the claimant "is suffering from a low back syndrome of musculo-ligamentous origin, and of mild severity"; that, while he"has an emotional overlay to his medical impairment it does not require psychiatric treatment and is of minimal contribution, if any, to his medical impairment or to his general ability to engage in substantial gainful activity;"that "[n]either his medical impairment nor his emotional overlay, singly or in combination, constitute a disability as defined" in the Act; and that the claimant is capable of engaging as a salesman in work in which he had previously engaged, of working as a watchman or Page 402 U. S. 397 guard where strenuous activity is not required, or as a ticket-taker or janitor. The hearing examiner's decision, then, was that the claimant was not entitled to a period of disability or to disability insurance benefits.It is to be noted at this point that § 205(d) of the Act, 42 U.S.C. 405(d), provides that the Secretary has power to issue subpoenas requiring the attendance and testimony of witnesses and the production of evidence and that the Secretary's regulations, authorized by § 205(a), 42 U.S.C. § 405(a), provide that a claimant may request the issuance of subpoenas, 20 CFR § 404.926. Perales, however, who was represented by counsel, did not request subpoenas for either of the two hearings.The claimant then made a request for review by the Appeals Council and submitted as supplemental evidence a judgment dated June 2, 1967, in Perales' favor against an insurance company for workmen's compensation benefits aggregating $11,665.84, plus medical and related expenses, and a medical report letter dated December 28, 1966, by Dr. Coyle W. Williams, apparently written in support of a welfare claim made by Perales. In his letter, the doctor noted an essentially negative neurological and physical examination except for tenderness in the lumbar area and limited straight leg raising. He observed, "I cannot explain all his symptoms on a physical basis. I would recommend he would re-condition himself and return to work. My estimation, he has a 15% permanent partial disability the body as a whole." The Appeals Council ruled that the decision of the hearing examiner was correct.Upon this adverse ruling the claimant instituted the present action for review pursuant to § 205(g). Each side moved for summary judgment on the administrative transcript. The District Court stated that it was reluctant to accept as substantial evidence the opinions of medical Page 402 U. S. 398 experts submitted in the form of unsworn written reports, the admission of which would have the effect of denying the opposition an opportunity for cross-examination; that the opinion of a doctor who had never examined the claimant is entitled to little or no probative value, especially when opposed by substantial evidence including the oral testimony of an examining physician; and that what was before the court amounted to hearsay upon hearsay. The case was remanded for a new hearing before a different examiner. Perales v. Secretary, 288 F. Supp. 313 (WD Tex.1968). On appeal the Fifth Circuit noted the absence of any request by the claimant for subpoenas and held that, having this right and not exercising it, he was not in a position to complain that he had been denied the rights of confrontation and of cross-examination. It held that the hearsay evidence in the case was admissible under the Act; that, specifically, the written reports of the physicians were admissible in the administrative hearing; that Dr. Leavitt's testimony also was admissible; but that all this evidence together did not constitute substantial evidence when it was objected to and when it was contradicted by evidence from the only live witnesses. Cohen v. Perales, 412 F.2d 44 (1969).On rehearing, the Court of Appeals observed that it did not mean by its opinion that uncorroborated hearsay could never be substantial evidence supportive of a hearing examiner's decision adverse to a claimant. It emphasized that its ruling that uncorroborated hearsay could not constitute substantial evidence was applicable only when the claimant had objected and when the hearsay was directly contradicted by the testimony of live medical witnesses and by the claimant in person. Cohen v. Perales, 416 F.2d 1250 (1969). Certiorari was granted in order to review and resolve this important procedural due process issue. 397 U.S. 1035 (1970). Page 402 U. S. 399IIWe therefore are presented with the not uncommon situation of conflicting medical evidence. The trier of fact has the duty to resolve that conflict. We have, on the one hand, an absence of objective findings, an expressed suspicion of only functional complaints, of malingering, and of the patient's unwillingness to do anything about remedying an unprovable situation. We have, on the other hand, the claimant's and his personal physician's earnest pleas that significant and disabling residuals from the mishap of September, 1965, are indeed present.The issue revolves, however, around a system which produces a mass of medical evidence in report form. May material of that kind ever be "substantial evidence" when it stands alone and is opposed by live medical evidence and the client's own contrary personal testimony? The courts below have held that it may not.IIIThe Social Security Act has been with us since 1935. Act of August 14, 1935, 49 Stat. 620. It affects nearly all of us. The system's administrative structure and procedures, with essential determinations numbering into the millions, are of a size and extent difficult to comprehend. But, as the Government's brief here accurately pronounces, "Such a system must be fair -- and it must work." [Footnote 5]Congress has provided that the Secretary"shall have full power and authority to make rules and regulations and to establish procedures . . . necessary or appropriate to carry out such provisions, and shall adopt reasonable and proper rules and Page 402 U. S. 400 regulations to regulate and provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same in order to establish the right to benefits hereunder."§ 205(a), 42 U.S.C. § 405(a). Section 205(b) directs the Secretary to make findings and decisions; on request, to give reasonable notice and opportunity for a hearing; and, in the course of any hearing, to receive evidence. It then provides:"Evidence may be received at any hearing before the Secretary even though inadmissible under rules of evidence applicable to court procedure."In carrying out these statutory duties, the Secretary has adopted regulations that state, among other things:"The hearing examiner shall inquire fully into the matters at issue and shall receive in evidence the testimony of witnesses and any documents which are relevant and material to such matters. . . . The . . . procedure at the hearing generally . . . shall be in the discretion of the hearing examiner and of such nature as to afford the parties a reasonable opportunity for a fair hearing."20 CFR § 404.927.From this, it is apparent that (a) the Congress granted the Secretary the power by regulation to establish hearing procedures; (b) strict rules of evidence, applicable in the courtroom, are not to operate at social security hearings so as to bar the admission of evidence otherwise pertinent; and (c) the conduct of the hearing rests generally in the examiner's discretion. There emerges an emphasis upon the informal, rather than the formal. This, we think, is as it should be, for this administrative procedure, and these hearings, should be understandable to the layman claimant, should not necessarily be stiff and comfortable only for the trained attorney, and should Page 402 U. S. 401 be liberal and not strict in tone and operation. This is the obvious intent of Congress so long as the procedures are fundamentally fair.IVWith this background and this atmosphere in mind, we turn to the statutory standard of "substantial evidence" prescribed by § 205(g). The Court has considered this very concept in other, yet similar, contexts. The National Labor Relations Act, § 10(e), in its original form, provided that the NLRB's findings of fact "if supported by evidence, shall be conclusive." 49 Stat. 454. The Court said this meant "supported by substantial evidence," and that this was"more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."Consolidated Edison Co. v. NLRB, 305 U. S. 197, 305 U. S. 229 (1938). The Court has adhered to that definition in varying statutory situations. See NLRB v. Columbian Enameling & Stamping Co., 306 U. S. 292, 306 U. S. 300 (1939); Universal Camera Corp. v. NLRB, 340 U. S. 474, 340 U. S. 477-487 (1951); Consolo v. Federal Maritime Comm'n, 383 U. S. 607, 383 U. S. 619-620 (1966).VWe may accept the propositions advanced by the claimant, some of them long established, that procedural due process is applicable to the adjudicative administrative proceeding involving "the differing rules of fair play, which through the years, have become associated with differing types of proceedings," Hannah v. Larche, 363 U. S. 420, 363 U. S. 442 (1960); that "the right' to Social Security benefits is in one sense `earned,'" Flemming v. Nestor, 363 U. S. 603, 363 U. S. 610 (1960); and that the"extent to which procedural due process must be afforded the recipient is influenced by the extent to Page 402 U. S. 402 which he may be 'condemned to suffer grievous loss.' . . . Accordingly, . . .""consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved, as well as of the private interest that has been affected by governmental action."Goldberg v. Kelly, 397 U. S. 254, 397 U. S. 262-263 (1970).The question, then, is as to what procedural due process requires with respect to examining physicians' reports in a social security disability claim hearing.We conclude that a written report by a licensed physician who has examined the claimant and who sets forth in his report his medical findings in his area of competence may be received as evidence in a disability hearing and, despite its hearsay character and an absence of cross-examination, and despite the presence of opposing direct medical testimony and testimony by the claimant himself, may constitute substantial evidence supportive of a finding by the hearing examiner adverse to the claimant, when the claimant has not exercised his right to subpoena the reporting physician and thereby provide himself with the opportunity for cross-examination of the physician.We are prompted to this conclusion by a number of factors that, we feel, assure underlying reliability and probative value:1. The identity of the five reporting physicians is significant. Each report presented here was prepared by a practicing physician who had examined the claimant. [Footnote 6] A majority (Drs. Langston, Bailey, and Mattson) were Page 402 U. S. 403 called into the case by the state agency. Although each received a fee, that fee is recompense for his time and talent otherwise devoted to private practice or other professional assignment. We cannot, and do not, ascribe bias to the work of these independent physicians, or any interest on their part in the outcome of the administrative proceeding beyond the professional curiosity a dedicated medical man possesses.2. The vast workings of the social security administrative system make for reliability and impartiality in the consultant reports. We bear in mind that the agency operates essentially, and is intended so to do, as an adjudicator, and not as an advocate or adversary. This is the congressional plan. We do not presume on this record to say that it works unfairly. [Footnote 7]3. One familiar with medical reports and the routine of the medical examination, general or specific, will recognize their elements of detail and of value. The particular reports of the physicians who examined claimant Perales were based on personal consultation and personal examination, and rested on accepted medical procedures and tests. The operating neurosurgeon, Dr. Munslow, provided his preoperative observations and diagnosis, his findings at surgery, his postoperative diagnosis, and his postoperative observations. Dr. Lampert, the neurologist, provided the history related to him by the patient, Perales' complaints, the physical examination and neurologic tests, and his professional impressions and recommendations. Dr. Langston, the orthopedist, did the same postoperatively, and described the orthopedic tests and Page 402 U. S. 404 neurologic examination he performed, the results and his impressions and prognosis. Dr. Mattson, who did the postoperative electromyography, described the results of that test, and his impressions. And Dr. Bailey, the psychiatrist, related the history, the patient's complaints, and the psychiatric diagnosis that emerged from the typical psychiatric examination.These are routine, standard, and unbiased medical reports by physician specialists concerning a subject whom they had seen. That the reports were adverse to Perales' claim is not, in itself, bias or an indication of nonprobative character.4. The reports present the impressive range of examination to which Perales was subjected. A specialist in neurosurgery, one in neurology, one in psychiatry, one in orthopedics, and one in physical medicine and rehabilitation add up to definitive opinion in five medical specialties, all somewhat related, but different in their emphases. It is fair to say that the claimant received professional examination and opinion on a scale beyond the reach of most persons, and that this case reveals a patient and careful endeavor by the state agency and the examiner to ascertain the truth.5. So far as we can detect, there is no inconsistency whatsoever in the reports of the five specialists. Yet each result was reached by independent examination in the writer's field of specialized training.6. Although the claimant complains of the lack of opportunity to cross-examine the reporting physicians, he did not take advantage of the opportunity afforded him under 20 CFR § 404.926 to request subpoenas for the physicians. The five-day period specified by the regulation for the issuance of the subpoenas surely afforded no real obstacle to this, for he was notified that the documentary evidence on file was available for examination before the hearing and, further, a supplemental Page 402 U. S. 405 hearing could be requested. In fact, in this very case, there was a supplemental hearing more than two and a half months after the initial hearings. This inaction on the claimant's part supports the Court of Appeals' view, 412 F.2d at 50-51, that the claimant, as a consequence, is to be precluded from now complaining that he was denied the rights of confrontation and cross-examination.7. Courts have recognized the reliability and probative worth of written medical reports even in formal trials and, while acknowledging their hearsay character, have admitted them as an exception to the hearsay rule. Notable is Judge Parker's well known ruling in the war risk insurance case of Long v. United States, 59 F.2d 602, 603-604 (CA4 1932), which deserves quotation here, but which, because of its length, we do not reproduce. The Second Circuit has made a like ruling in White v. Zutell, 263 F.2d 613, 615 (1959), and in so doing, relied on the Business Records Act, 28 U.S.C. § 1732.8. Past treatment by reviewing courts of written medical reports in social security disability cases is revealing. Until the decision in this case, the courts of appeals, including the Fifth Circuit, with only an occasional criticism of the medical report practice, [Footnote 8] uniformly recognized reliability and probative value in such reports. The courts have reviewed administrative determinations, and upheld many adverse ones, where the only supporting evidence has been reports of this kind, buttressed sometimes, but often not, by testimony of a medical adviser such as Dr. Leavitt. [Footnote 9] In these cases, admissibility was Page 402 U. S. 406 not contested, but the decisions do demonstrate traditional and ready acceptance of the written medical report in social security disability cases.9. There is an additional and pragmatic factor which, although not controlling, deserves mention. This is what Chief Judge Brown has described as "[t]he sheer magnitude of that administrative burden," and the resulting necessity for written reports without "elaboration through the traditional facility of oral testimony." Page v. Celebrezze, 311 F.2d 757, 760 (CA5 1963). With over 20,000 disability claim hearings annually, the cost of providing live medical testimony at those hearings, where need has not been demonstrated by a request for a subpoena, over and above the cost of the examinations requested by hearing examiners, would be a substantial drain on the trust fund and on the energy of physicians already in short supply.VI1. Perales relies heavily on the Court's holding and statements in Goldberg v. Kelly, supra, particularly the comment that due process requires notice "and an effective opportunity to defend by confronting any adverse witnesses. . . ." 397 U.S. at 397 U. S. 267-268. Kelly, however, Page 402 U. S. 407 had to do with termination of AFDC benefits without prior notice. It also concerned a situation, the Court said, "where credibility and veracity are at issue, as they must be in many termination proceedings." 397 U.S. at 397 U. S. 269.The Perales proceeding is not the same. We are not concerned with termination of disability benefits once granted. Neither are we concerned with a change of status without notice. Notice was given to claimant Perales. The physicians' reports were on file and available for inspection by the claimant and his counsel. And the authors of those reports were known, and were subject to subpoena and to the very cross-examination that the claimant asserts he has not enjoyed. Further, the specter of questionable credibility and veracity is not present; there is professional disagreement with the medical conclusions, to be sure, but there is no attack here upon the doctors' credibility or veracity. Kelly affords little comfort to the claimant.2. Perales also, as the Court of Appeals stated, 412 F.2d at 53, 416 F.2d at 1251, would describe the medical reports in question as "mere uncorroborated hearsay," and would relate this to Mr. Chief Justice Hughes' sentence in Consolidated Edison Co. v. NLRB, 305 U.S. at 305 U. S. 230: "Mere uncorroborated hearsay or rumor does not constitute substantial evidence."Although the reports are hearsay in the technical sense, because their content is not produced live before the hearing examiner, we feel that the claimant and the Court of Appeals read too much into the single sentence from Consolidated Edison. The contrast the Chief Justice was drawing, at the very page cited, was not with material that would be deemed formally inadmissible in judicial proceedings but with material "without a basis in evidence having rational probative force." This was not a blanket rejection by the Court of administrative Page 402 U. S. 408 reliance on hearsay irrespective of reliability and probative value. The opposite was the case.3. The claimant, the District Court, and the Court of Appeals also criticize the use of Dr. Leavitt as a medical adviser. 288 F. Supp. at 314, 412 F.2d at 53-54. See also Mefford v. Gardner, 383 F.2d 748, 759-761 (CA6 1967). Inasmuch as medical advisers are used in approximately 13% of disability claim hearings, comment as to this practice is indicated. We see nothing "reprehensible" in the practice, as the claimant would describe it. The trial examiner is a layman; the medical adviser is a board-certified specialist. He is used primarily in complex cases for explanation of medical problems in terms understandable to the layman-examiner. He is a neutral adviser. This particular record discloses that Dr. Leavitt explained the technique and significance of electromyography. He did offer his own opinion on the claimant's condition. That opinion, however, did not differ from the medical reports. Dr. Leavitt did not vouch for the accuracy of the facts assumed in the reports. No one understood otherwise. See Doe v. Department of Transportation, 412 F.2d 674, 678-680 (CA8 1969). We see nothing unconstitutional or improper in the medical adviser concept and in the presence of Dr. Leavitt in this administrative hearing.4. Finally, the claimant complains of the system of processing disability claims. He suggests, and is joined in this by the briefs of amici, that the Administrative Procedure Act, rather than the Social Security Act, governs the processing of claims and specifically provides for cross-examination, 5 U.S.C. § 556(d) (1964 ed., Supp. V). The claimant goes on to assert that, in any event, the hearing procedure is invalid on due process grounds. He says that the hearing examiner has the responsibility for gathering the evidence and "to make the Page 402 U. S. 409 Government's case as strong as possible"; that, naturally, he leans toward a decision in favor of the evidence he has gathered; that justice must satisfy the appearance of justice, citing Offutt v. United States, 348 U. S. 11, 348 U. S. 14 (1954), and In re Murchison, 349 U. S. 133, 349 U. S. 136 (1955); and that an "independent hearing examiner such as in the" Longshoremen's and Harbor Workers' Compensation Act should be provided.We need not decide whether the APA has general application to social security disability claims, for the social security administrative procedure does not vary from that prescribed by the APA. Indeed, the latter is modeled upon the Social Security Act. See Final Report of the Attorney General's Committee on Administrative Procedure, contained in Administrative Procedure in Government Agencies, S.Doc. No. 8, 77th Cong., 1st Sess., 157 (1941); see also the remarks of Senator McCarran, chairman of the Judiciary Committee of the Senate, 92 Cong.Rec. 2155. The cited § 556(d) provides that any documentary evidence "may be received" subject to the exclusion of the irrelevant, the immaterial, and the unduly repetitious. It further provides that a"party is entitled to present his case or defense by oral or documentary evidence . . . and to conduct such cross-examination as may be required for a full and true disclosure of the facts,"and, in"determining claims for money or benefits . . . , an agency may, when a party will not be prejudiced thereby, adopt procedures for the submission of all or part of the evidence in written form."These provisions conform, and are consistent with, rather than differ from or supersede, the authority given the Secretary by the Social Security Act's §§ 205(a) and (b) "to establish procedures," and"to regulate and provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same in Page 402 U. S. 410 order to establish the right to benefits,"and to receive evidence "even though inadmissible under rules of evidence applicable to court procedure" Hearsay, under either Act, is thus admissible up to the point of relevancy.The matter comes down to the question of the procedure's integrity and fundamental fairness. We see nothing that works in derogation of that integrity and of that fairness in the admission of consultants' reports, subject as they are to being material and to the use of the subpoena and consequent cross-examination. This precisely fits the statutorily prescribed "cross-examination as may be required for a full and true disclosure of the facts." That is the standard. It is clear and workable, and does not fall short of procedural due process.Neither are we persuaded by the "advocate-judge multiple hat" suggestion. It assumes too much, and would bring down too many procedures designed, and working well, for a governmental structure of great and growing complexity. The social security hearing examiner, furthermore, does not act as counsel. He acts as an examiner charged with developing the facts. The 44.2% reversal rate for all federal disability hearings in cases where the state agency does not grant benefits, M. Rock, An Evaluation of the SSA Appeals Process, Report No. 7, U.S. Department of HEW, p. 9 (1970), attests to the fairness of the system and refutes the implication of impropriety.We therefore reverse and remand for further proceedings. We intimate no view as to the merits. It is for the District Court now to determine whether the Secretary's findings, in the light of all material proffered and admissible, are supported by "substantial evidence" within the command of § 205(g).It is so ordered

U.S. Supreme CourtRichardson v. Perales, 402 U.S. 389 (1971)Richardson v. PeralesNo. 108Argued January 13, 1971Decided May 3, 1971402 U.S. 389SyllabusWritten report by physicians who have examined claimant for disability insurance benefit under Social Security Act constitute "substantial evidence" supporting a nondisability finding within the standard of § 205(g) of the Act, notwithstanding the report's hearsay character, the absence of cross-examination (through claimant's failure to exercise his subpoena right), and the directly opposing testimony by the claimant and his medical witness; and procedure followed under Act does not violate due process requirements. Pp. 402 U. S. 399-410.412 F.2d 44 and 416 F.2d 1250, reversed and remanded.BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.J., and HARLAN, STEWART, WHITE, and MARSHALL, JJ., joined. DOUGLAS, J., filed a dissenting opinion, in which BLACK and BRENNAN, JJ., joined, post, p. 402 U. S. 411. Page 402 U. S. 390

1969_369

MR. JUSTICE DOUGLAS delivered the opinion of the Court.The Interstate Commerce Commission has statutory power to grant motor carriers temporary operating authority "without hearings or other proceedings" when the authority relates to a "service for which there is an immediate and urgent need" and where there is "no Page 397 U. S. 534 carrier service capable of meeting such need." [Footnote 1] Interstate Commerce Act § 210a, 52 Stat. 1238, as amended, 49 U.S.C. § 310a. The ICC processes applications for such authority under rules promulgated in 1965. 49 CFR pt. 1131. [Footnote 2] Among other things, those rules require that an applicant accompany his application with supporting statements of shippers that contain information "designed to establish an immediate and urgent need for service which cannot be met by existing carriers." Id. 1131.2(c). Each such supporting statement "must contain at least" 11 items of information, [Footnote 3] including the following:"(8) Whether efforts have been made to obtain the service from existing motor, rail, or water carriers, and the dates and results of such efforts.""(9) Names and addresses of existing carriers who have either failed or refused to provide the service, and the reasons given for any such failure or refusal. "Page 397 U. S. 535Appellant American Farm Lines (AFL) filed an application for temporary operating authority. [Footnote 4] The application was accompanied by a supporting statement of the Department of Defense (DOD). The ICC Temporary Page 397 U. S. 536 Authorities Board denied the application on the ground that the "applicant has not established that there exists an immediate and urgent need for any of the service proposed." Division I of the ICC (acting as an Appellate Division) reversed the Board and granted AFL temporary authority. Protesting carriers sought review of this action in the United States District Court for the Western District of Washington. A single judge of the District Court temporarily restrained the operation of the ICC order, and the ICC thereupon ordered postponement of the operation of its grant. At that time, numerous petitions for reconsideration were pending before the Commission, and the stay order did not direct the Commission to stay its hand with respect to them. The record was indeed not filed with the court until much later. Meanwhile, the Commission granted the petitions and reopened the proceeding to receive a further supporting statement of DOD. This took the form of the verified statement of Vincent F. Caputo, DOD Director for Transportation and Warehousing Policy, which was submitted as a purported reply to the pending petitions for reconsideration. Based upon this statement, the ICC entered a new order granting the AFL application. A single judge of the District Court restrained the operation of the new order. Thereafter, a three-judge District Court conducted a full hearing on the merits. [Footnote 5] The ICC admitted at that stage that its first order "may not have been based upon evidence to support its conclusion," but argued that there was no infirmity in the new order. The three-judge court set aside both orders. 298 F. Supp. 1006. Both AFL and ICC appealed to this Court, and we noted probable jurisdiction. [Footnote 6] 396 U.S. 884. Page 397 U. S. 537IThe first alleged error in the case is the failure of the Interstate Commerce Commission to require strict compliance with its own rules. The rules in question, unlike some of our own, do not involve "jurisdictional" problems, but only require certain information to be set forth in statements filed in support of applications of motor carriers for temporary operating authority.The Caputo statement asserted that part of the tremendous volume of traffic that DOD moved in the territories involved had to be moved "in the most expeditious manner possible," and that, since air transport was prohibitively expensive "except in the most extreme emergencies," there was an "imperative" need for the most expeditious motor carrier service. The need for this expeditious transport did not rest merely on a desire to obtain the most efficient service, but, in addition, rested on the need to coordinate arrival times of shipments with factory production schedules and with shiploading or airlift times for overseas shipments. The particular inadequacies in existing service were pointed out, namely, the delays inherent in joint-line service, regular-route service, and the use of single drivers. The statement did not assert that none of the existing carriers provided sufficiently expeditious service to meet DOD needs; rather, it claimed that the carriers providing satisfactory service in the territories in question were so few in number that the additional services of AFL were required to meet DOD's transportation needs.Concededly, the Caputo statement did not give the dates of DOD's efforts to secure service from other existing carriers or a complete list of the names and addresses of the carriers who failed or refused to provide service, as required by the terms of subsections (8) and (9), 49 CFR § 1131.2(c). Such a complete listing of this information, Page 397 U. S. 538 given the volume of traffic involved, would indeed have been a monumental undertaking.The failure of the Caputo statement to provide these particular specifies did not prejudice the carriers in making precise and informed objections to AFL's application. The briefest perusal of the objecting carriers' replies, which cover some 156 pages in the printed record of these appeals, belies any such contention. Neither was the statement so devoid of information that it, along with the replies of the protesting carriers, could not support a finding that AFL's service was required to meet DOD's immediate and urgent transportation needs. In our view, the District Court exacted a standard of compliance with procedural rules that was wholly unnecessary to provide an adequate record to review the Commission's decision.The Commission is entitled to a measure of discretion in administering its own procedural rules in such a manner as it deems necessary to resolve quickly and correctly urgent transportation problems. It is argued that the rules were adopted to confer important procedural benefits upon individuals; in opposition, it is said the rules were intended primarily to facilitate the development of relevant information for the Commission's use in deciding applications for temporary authority.We agree with the Commission that the rules were promulgated for the purpose of providing the "necessary information" for the Commission "to reach an informed and equitable decision" on temporary authority applications. ICC Policy Release of January 23, 1968. The Commission stated that requests for temporary authority would be turned down "if the applications do not adequately comply with [the] . . . rules." Ibid. (Emphasis added.) The rules were not intended primarily to confer important procedural benefits upon individuals in the face of otherwise unfettered discretion, Page 397 U. S. 539 as in Vitarelli v. Seaton, 359 U. S. 535; nor is this a case in which an agency required by rule to exercise independent discretion has failed to do so. Accardi v. Shaughnessy, 347 U. S. 260; Yellin v. United States, 374 U. S. 109. Thus, there is no reason to exempt this case from the general principle that"[i]t is always within the discretion of a court or an administrative agency to relax or modify its procedural rules adopted for the orderly transaction of business before it when in a given case the ends of justice require it. The action of either in such a case is not reviewable except upon a showing of substantial prejudice to the complaining party."NLRB v. Monsanto Chemical Co., 205 F.2d 763, 764. And see NLRB v. Grace Co., 184 F.2d 126, 129; Sun Oil Co. v. FPC, 256 F.2d 233; McKenna v. Seaton, 104 U.S.App.D.C. 50, 259 F.2d 780.We deal here with the grant of temporary authority similar to that granted in Estes Express Lines v. United States, 292 F. Supp. 842, aff'd, 394 U. S. 718. There, the grant of temporary authority was upheld even though there may not have been literal compliance with subsections (8) and (9) of the Commission's rules. That result was in line with § 210a(a) of the Act, which was designed to provide the Commission with a swift and procedurally simple ability to respond to urgent transportation needs. That functional approach is served by treating (8) and (9) not as inflexible procedural conditions, but as tools to aid the Commission in exercising its discretion to meet "an immediate and urgent need" for services where the existing service is incapable of meeting that need. Unlike some rules, the present ones are mere aids to the exercise of the agency's independent discretion.IIAfter the Commission issued its first order, petitions for reconsideration were filed, and before they were passed Page 397 U. S. 540 upon, some carriers filed suit and a single judge temporarily restrained operation of that first order. It was after that order issued, and over a month before the case was argued to the three-judge court, that the Commission granted the petitions for rehearing and reopened the record and received the Caputo verified statement.The District Court held that the pendency of the review proceedings deprived the Commission of jurisdiction to reopen the administrative record.Congress has provided as respects some regulatory systems that the agency may modify any finding up until the record is filed with a court. Such is the provision of the National Labor Relations Act, as amended, 61 Stat. 147, 29 U.S.C. § 160(d) and § 160(e), which provides that any subsequent changes in the record will be made only at the direction of the court. A similar provision is included in § 5 of the Federal Trade Commission Act, 38 Stat. 719, as amended, 15 U.S.C. § 45(C) and in § 11 of the Clayton Act, 38 Stat. 734, as amended, 15 U.S.C. § 21(c). And a like provision is included in the review by the courts of appeals of orders of other designated federal agencies. 28 U.S.C. § 2347(c) (1964 ed., Supp. IV). But there is no such requirement in the Interstate Commerce Act. [Footnote 7] It indeed empowers the Commission "at any time to grant rehearings as to any decision, order, or requirement and to reverse, change, or modify the same." [Footnote 8]The power of the Commission to grant rehearings is not limited or qualified by the terms of 49 U.S.C. Page 397 U. S. 541 § 17(6) or § 17(7). Thus, in § 17(6), it is said, "Rehearing, reargument, or reconsideration may be granted if sufficient reason therefor be made to appear." And § 17(7) provides that if, after rehearing or reconsideration, the original decision, order, or requirement appears "unjust or unwarranted," the Commission may "reverse, change, or modify" the same. These broad powers are plainly adequate to add to the findings or firm them up as the Commission deems desirable, absent any collision or interference with the District Court.Unless Congress provides otherwise, "[w]here a motion for rehearing is, in fact, filed, there is no final action until the rehearing is denied." Outland v. CAB, 109 U.S.App.D.C. 90, 93, 284 F.2d 224, 227. In multi-party proceedings such as the present one, some may seek judicial review and others may seek administrative reconsideration. "That both tribunals have jurisdiction does not mean, of course, that they will act at cross purposes." Wrather-Alvarez Broadcasting, Inc. v. FCC, 101 U.S.App.D.C. 324, 327, 248 F.2d 646, 649. The concept "of an indivisible jurisdiction which must be all in one tribunal or all in the other may fit" some statutory schemes, ibid., but it does not fit this one.This power of the Commission to reconsider a prior decision does not necessarily collide with the judicial power of review. For while the court properly could provide temporary relief against a Commission order, its issuance does not mean that the Commission loses all jurisdiction to complete the administrative process. It does mean that, thereafter, the Commission is "without power to act inconsistently with the court's jurisdiction." Inland Steel Co. v. United States, 306 U. S. 153, 306 U. S. 160. When the Commission made the additional findings after its first order was stayed by the court, it did not act inconsistently with what the court had done. It did not interfere in the slightest with the court's protective Page 397 U. S. 542 order. What the Commission did came before the court was ready to hear arguments on the merits and before the record was filed with it. Moreover, the Commission, in light of the District Court's stay, by express terms, directed AFL not to perform operations under the first order, and made the second order effective only on further order of the Commission. [Footnote 9] Since, by the Act, the Commission never lost jurisdiction to pass on petitions for rehearing, and since the stay order did not forbid it from acting on those pending petitions, it was not necessary for the Commission to seek permission of the court to make those rulings.The Commission reopened the record merely to remedy a deficiency in it before any judicial review of the merits had commenced, and fully honored the stay order of the District Court. It therefore acted in full harmony with the court's jurisdiction.Reversed

U.S. Supreme CourtAmerican Farm Lines v. Black Ball Freight, 397 U.S. 532 (1970)American Farm Lines v. Black Ball Freight ServiceNo. 369Argued February 25, 1970Decided April 20, 1970*397 U.S. 532SyllabusAppellant American Farm Lines (AFL) filed an application for temporary operating authority under § 210a of the Interstate Commerce Act, which allows the Interstate Commerce Commission (ICC) to grant such authority without hearings for "service for which there is an immediate and urgent need" and where there is "no carrier service capable of meeting such need." ICC rules require that the application be supported by shippers' statements containing 11 items of information, including "(8) Whether efforts have been made to obtain the services from existing . . . carriers, and the dates and results of such efforts," and"(9) Names and addresses of existing carriers who have either failed or refused to provide the service, and the reasons given for any such failure or refusal."AFL's application, which was accompanied by a statement from the Department of Defense (DOD), was approved by the ICC. Protesting carriers sought review in the Federal District Court, where a single judge temporarily restrained the operation of the ICC's order. The ICC, not barred by the stay order from doing so, then granted petitions for reconsideration and reopened the proceeding to receive a further supporting statement from DOD. Based upon this statement, the ICC issued a new order granting AFL's application, and a single District Judge restrained the operation of this new order. Thereafter a three-judge court conducted a full hearing on the merits and set aside both ICC orders on the grounds that the agency failed to require strict compliance with its own rules and that the pendency of the review proceedings deprived the ICC of jurisdiction to reopen the administrative record.Held:1. These ICC rules are mere aids to the exercise of the agency's independent discretion, and the District Court exacted a standard of compliance with these procedural rules that was wholly unnecessary Page 397 U. S. 533 to provide a adequate record to review the ICC's decision. Pp. 397 U. S. 537-539.2. The ICC's statutory jurisdiction to pas on petition for rehearing may be exercised to add to it findings or to buttress them as it seems desirable, absent any interference with or injunction from the District Court. Here, the ICC honored the District Court's stay order and reopened the record merely to remedy a deficiency before any judicial review of the merits had begun, and acted in full harmony with that court's jurisdiction. Pp. 397 U. S. 539-542.298 F. Supp. 1006, reversed.

1984_84-679

JUSTICE BRENNAN delivered the opinion of the Court.The question presented by this case is whether the common law in pari delicto defense bars a private damages action under the federal securities laws against corporate insiders and broker-dealers who fraudulently induce investors to purchase securities by misrepresenting that they are conveying material nonpublic information about the issuer.IThe respondent investors filed this action in the United States District Court for the Northern District of California, alleging that they incurred substantial trading losses as a result of a conspiracy between Charles Lazzaro, a registered securities broker employed by the petitioner Bateman Eichler, Hill Richards, Inc. (Bateman Eichler), and Leslie Neadeau, President of T.O.N.M. Oil & Gas Exploration Corporation (TONM), to induce them to purchase large quantities of TONM over-the-counter stock by divulging false and materially incomplete information about the company on the pretext that it was accurate inside information. [Footnote 1] Specifically, Lazzaro is alleged to have told the respondents that he personally knew TONM insiders and had learned, inter alia, that (a) "[v]ast amounts of gold had been discovered in Surinam, and TONM had options on thousands of acres in gold-producing Page 472 U. S. 302 regions of Surinam"; [Footnote 2] (b) the discovery was "not publicly known, but would subsequently be announced"; (c) TONM was currently engaged in negotiations with other companies to form a joint venture for mining the Surinamese gold; and (d) when this information was made public,"TONM stock, which was then selling from $1.50 to $3.00/share, would increase in value from $10 to $15/share within a short period of time, and . . . might increase to $100/share"within a year. Complaint �� 16-17, App. 10-12. [Footnote 3] Some of the respondents aver that they contacted Neadeau and inquired whether Lazzaro's tips were accurate; Neadeau stated that the information was "not public knowledge," and "would neither confirm nor deny those claims," but allegedly advised that "Lazzaro was a very trustworthy and a good man." Id., � 19, App. 12.The respondents admitted in their complaint that they purchased TONM stock, much of it through Lazzaro, "on the premise that Lazzaro was privy to certain information not otherwise available to the general public." Id., � 15, App. 10. Their shares initially increased dramatically in price, but ultimately declined to substantially below the purchase price when the joint mining venture fell through. Id., �� 22-26, App. 13-14. [Footnote 4] Page 472 U. S. 303Lazzaro and Neadeau are alleged to have made the representations set forth above knowing that the representations "were untrue and/or contained only half-truths, material omissions of fact and falsehoods," [Footnote 5] intending that the respondents would rely thereon, and for the purpose of "influenc[ing] and manipulat[ing] the price of TONM stock" so as "to profit themselves through the taking of commissions and secret profits." Id., �� 23, 30, 38, App. 13, 15-16. [Footnote 6] The respondents contended that this scheme violated, inter alia, § 10(b) of the Securities Exchange Act of 1934, 48 Stat. 891, 15 U.S.C. § 78j(b), [Footnote 7] and Securities and Exchange Commission Page 472 U. S. 304 (SEC) Rule 10b-5 promulgated thereunder, 17 CFR § 240.10b-5 (1984). [Footnote 8] They sought capital losses and lost profits, punitive damages, and costs and attorney's fees. App. 26. [Footnote 9]The District Court dismissed the complaint for failure to state a claim. The court reasoned that "trading on insider information is itself a violation of rule 10b-5," and that the allegations in the complaint demonstrated that the respondents themselves had "violated the particular statutory provision under which recovery is sought." App. to Pet. for Cert. C-2. Thus, the court concluded, the respondents were in pari delicto with Lazzaro and Neadeau, and absolutely barred from recovery. Ibid.The Court of Appeals for the Ninth Circuit reversed. Berner v. Lazzaro, 730 F.2d 1319 (1984). Although it Page 472 U. S. 305 assumed that the respondents had violated the federal securities laws, id. at 1324, the court nevertheless concluded that"securities professionals and corporate officers who have allegedly engaged in fraud should not be permitted to invoke the in pari delicto doctrine to shield themselves from the consequences of their fraudulent misrepresentation,"id. at 1320. The Court of Appeals noted that this Court had sharply restricted the availability of the in pari delicto defense in antitrust actions, see Perma Life Mufflers, Inc. v. International Parts Corp., 392 U. S. 134 (1968), and concluded that, essentially for three reasons, there was no basis "for creating a different rule for private actions initiated under the federal securities laws," 730 F.2d at 1322. First, the court reasoned that, in cases such as this, defrauded tippees are not in fact "equally responsible" for the violations they allege. Ibid. Second, the court believed that allowing the defense in these circumstances would be "totally incompatible with the overall aims of the securities law" because the threat of a private damages action is necessary to deter "insider-tipster[s]" from defrauding the public. Id. at 1323. Finally, the court noted the availability of means other than an outright preclusion of suit to deter tippees from trading on inside information. Id. at 1324, n. 3.The lower courts have divided over the proper scope of the in pari delicto defense in securities litigation. [Footnote 10] We granted certiorari. 469 U.S. 1105 (1985). We affirm. Page 472 U. S. 306IIThe common law defense at issue in this case derives from the Latin, in par delicto potior est conditio defendentis: "In a case of equal or mutual fault . . . the position of the [defending] party . . . is the better one." [Footnote 11] The defense is grounded on two premises: first, that courts should not lend their good offices to mediating disputes among wrongdoers; [Footnote 12] and second, that denying judicial relief to an admitted wrongdoer is an effective means of deterring illegality. [Footnote 13] In its classic formulation, Page 472 U. S. 307 the in pari delicto defense was narrowly limited to situations where the plaintiff truly bore at least substantially equal responsibility for his injury, because"in cases where both parties are in delicto, concurring in an illegal act, it does not always follow that they stand in pari delicto; for there may be, and often are, very different degrees in their guilt."1 J. Story, Equity Jurisprudence 304-305 (13th ed. 1886) (Story). Thus there might be an "inequality of condition" between the parties, id. at 305, or "a confidential relationship between th[em]" that determined their "relative standing" before a court, 3 J. Pomeroy, Equity Jurisprudence § 942a, p. 741 (5th ed.1941) (Pomeroy). In addition, the public policy considerations that undergirded the in pari delicto defense were frequently construed as precluding the defense even where the plaintiff bore substantial fault for his injury:"[T]here may be on the part of the court itself a necessity of supporting the public interests or public policy in many cases, however reprehensible the acts of the parties may be."1 Story 305. Notwithstanding these traditional limitations, many courts have given the in pari delicto defense a broad application to bar actions where plaintiffs simply have been involved generally in "the same sort of wrongdoing" as defendants. Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S. at 392 U. S. 138. [Footnote 14]In Perma Life, we emphasized "the inappropriateness of invoking broad common law barriers to relief where a private suit serves important public purposes." Ibid. That case involved a treble-damages action against a Midas Muffler franchisor by several of its dealers, who alleged that the franchise agreement created a conspiracy to restrain trade in violation Page 472 U. S. 308 of the Sherman and Clayton Acts. [Footnote 15] The lower courts barred the action on the grounds that the dealers, as parties to the agreement, were in pari delicto with the franchisor. In reversing that determination, the opinion for this Court emphasized that there was no indication that Congress had intended to incorporate the defense into the antitrust laws, which"are best served by insuring that the private action will be an ever-present threat to deter anyone contemplating [illegal] business behavior."Id. at 392 U. S. 139. Accordingly, the opinion concluded that"the doctrine of in pari delicto, with its complex scope, contents, and effects, is not to be recognized as a defense to an antitrust action."Id. at 392 U. S. 140. The opinion reserved the question whether a plaintiff who engaged in "truly complete involvement and participation in a monopolistic scheme" -- one who "aggressively support[ed] and further[ed] the monopolistic scheme as a necessary part and parcel of it" -- could be barred from pursuing a damages action, finding that the muffler dealers had relatively little bargaining power and that they had been coerced by the franchisor into agreeing to many of the contract's provisions. Ibid.In separate opinions, five Justices agreed that the concept of "equal fault" should be narrowly defined in litigation arising under federal regulatory statutes. [Footnote 16]"[B]ecause of the strong public interest in eliminating restraints on competition, . . . many of the refinements of moral worth demanded of plaintiffs by . . . many of the variations of in pari delicto should not be applicable in the antitrust field."Id. at 392 U. S. 151 (MARSHALL, J., concurring in result). The five Justices concluded, however, that where a plaintiff truly bore at least substantially equal responsibility for the violation, a defense Page 472 U. S. 309 based on such fault -- whether or not denominated in pari delicto -- should be recognized in antitrust litigation. [Footnote 17]Bateman Eichler argues that Perma Life -- with its emphasis on the importance of analyzing the effects that fault-based defenses would have on the enforcement of congressional goals -- is of only marginal relevance to a private damages action under the federal securities laws. Specifically, Bateman Eichler observes that Congress expressly provided for private antitrust actions -- thereby manifesting a"desire to go beyond the common law in the antitrust statute in order to provide substantial encouragement to private enforcement and to help deter anticompetitive conduct"-- whereas private rights of action under § 10(b) of the Securities Exchange Act of 1934 are merely implied from that provision [Footnote 18] -- thereby, apparently, supporting a broader application of the in pari delicto defense. Brief for Petitioner 32. Bateman Eichler buttresses this argument by observing that, unlike the Sherman and Clayton Acts, the securities laws contain savings provisions directing that"[t]he rights and remedies provided by [those laws] shall be in addition to any and all other rights and remedies that may exist at law or in equity [Footnote 19]"-- again, apparently, supporting a broader scope for fault-based defenses than recognized in Perma Life. Page 472 U. S. 310We disagree. Nothing in Perma Life suggested that public policy implications should govern only where Congress expressly provides for private remedies; the classic formulation of the in pari delicto doctrine itself required a careful consideration of such implications before allowing the defense. See supra at 472 U. S. 307. Moreover, we repeatedly have emphasized that implied private actions provide "a most effective weapon in the enforcement" of the securities laws, and are "a necessary supplement to Commission action." J. I. Case Co. v. Borak, 377 U. S. 426, 377 U. S. 432 (1964); see also Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723, 421 U. S. 730 (1975). In addition, we have eschewed rigid common law barriers in construing the securities laws. See, e.g., Herman & MacLean v. Huddleston, 459 U. S. 375, 459 U. S. 388-389 (1983) (common law doctrines are sometimes of "questionable pertinence" in applying the securities laws, which were intended "to rectify perceived deficiencies in the available common law protections by establishing higher standards of conduct in the securities industry"); A. C. Frost & Co. v. Coeur d'Alene Mines Corp., 312 U. S. 38, 312 U. S. 43 (1941) (rejecting the unclean hands defense on the facts of the case because it would "seriously hinder, rather than aid, the real purpose" of the securities laws). [Footnote 20] We therefore conclude that the views expressed in Perma Life apply with full force to implied causes of action under the federal securities laws. Accordingly, a private action for damages in these circumstances may be barred on the grounds of the plaintiff's own culpability only where, (1) as a direct result of his own actions, the plaintiff bears at least substantially equal responsibility for the violations he seeks Page 472 U. S. 311 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.AThe District Court and Court of Appeals proceeded on the assumption that the respondents had violated § 10(b) and Rule 10b-5, see supra at 472 U. S. 304-305 -- an assumption we accept for purposes of resolving the issue before us. Cf. A. C. Frost & Co. v. Coeur d'Alene Mines Corp., supra, at 312 U. S. 40-41. [Footnote 21] Page 472 U. S. 312 Bateman Eichler contends that the respondents' delictum was substantially par to that of Lazzaro and Neadeau for two reasons. First, whereas many antitrust plaintiffs participate in illegal restraints of trade only "passively" or as the result of economic coercion, as was the case in Perma Life, the ordinary tippee acts voluntarily in choosing to trade on inside information. Second, § 10(b) and Rule 10b-5 apply literally to "any person" who violates their terms, and do not recognize gradations of culpability.We agree that the typically voluntary nature of an investor's decision impermissibly to trade on an inside tip renders the investor more blameworthy than someone who is party to a contract solely by virtue of another's overweening bargaining power. We disagree, however, that an investor who engages in such trading is necessarily as blameworthy as a corporate insider or broker-dealer who discloses the information for personal gain. Notwithstanding the broad reach of § 10(b) and Rule 10b-5, there are important distinctions Page 472 U. S. 313 between the relative culpabilities of tippers, securities professionals, and tippees in these circumstances. The Court has made clear in recent Terms that a tippee's use of material nonpublic information does not violate § 10(b) and Rule 10b-5 unless the tippee owes a corresponding duty to disclose the information. Dirks v. SEC, 463 U. S. 646, 463 U. S. 654-664 (1983); Chiarella v. United States, 445 U. S. 222, 445 U. S. 230, n. 12 (1980). That duty typically is "derivative from . . . the insider's duty." Dirks v. SEC, supra, at 463 U. S. 659; see also id. at 463 U. S. 664. In other words, "[t]he tippee's obligation has been viewed as arising from his role as a participant after the fact in the insider's breach of a fiduciary duty" toward corporate shareholders. Chiarella v. United States, supra, at 445 U. S. 230, n. 12. [Footnote 22] In the context of insider trading, we do not believe that a person whose liability is solely derivative can be said to be as culpable as one whose breach of duty gave rise to that liability in the first place. [Footnote 23]Moreover, insiders and broker-dealers who selectively disclose material nonpublic information commit a potentially broader range of violations than do tippees who trade on the basis of that information. A tippee trading on inside information will in many circumstances be guilty of fraud against individual shareholders, a violation for which the tipper shares responsibility. But the insider, in disclosing such information, also frequently breaches fiduciary duties toward the issuer itself. [Footnote 24] And in cases where the tipper Page 472 U. S. 314 intentionally conveys false or materially incomplete information to the tippee, the tipper commits an additional violation: fraud against the tippee. Such conduct is particularly egregious when committed by a securities professional, who owes a duty of honesty and fair dealing toward his clients. Cf. 3 Pomeroy § 942a, at 741. Absent other culpable actions by a tippee that can fairly be said to outweigh these violations by insiders and broker-dealers, we do not believe that the tippee properly can be characterized as being of substantially equal culpability as his tippers.There is certainly no basis for concluding at this stage of this litigation that the respondents were in pari delicto with Lazzaro and Neadeau. The allegations are that Lazzaro and Neadeau masterminded this scheme to manipulate the market in TONM securities for their own personal benefit, and that they used the purchasing respondents as unwitting dupes to inflate the price of TONM stock. The respondents may well have violated the securities laws, and in any event we place no "stamp of approval" on their conduct. Chiarella v. United States, supra, at 445 U. S. 238 (STEVENS, J., concurring). But accepting the facts set forth in the complaint as true -- as we must in reviewing the District Court's dismissal on the pleadings -- Lazzaro and Neadeau"awakened in [the respondents] a desire for wrongful gain that might otherwise have remained dormant, inspired in [their] mind[s] an unfounded idea that [they were] going to secure it, and then, by fraud and false pretenses, deprived [them] of [their] money,"Stewart v. Wright, 147 F. 321, 328-329 (CA8), cert. denied, 203 U.S. 590 (1906) -- actions that, if they occurred, were far more culpable under any reasonable view than the respondents' alleged conduct. [Footnote 25] Page 472 U. S. 315BWe also believe that denying the in pari delicto defense in such circumstances will best promote the primary objective of the federal securities laws -- protection of the investing public and the national economy through the promotion of "a high standard of business ethics . . . in every facet of the securities industry." SEC v. Capital Gains Research Bureau, Inc., 375 U. S. 180, 375 U. S. 186-187 (1963). Although a number of lower courts have reasoned that a broad rule of caveat tippee would better serve this goal, [Footnote 26] we believe the contrary position adopted by other courts represents the better view. [Footnote 27]To begin with, barring private actions in cases such as this would inexorably result in a number of alleged fraudulent practices going undetected by the authorities and unremedied. The SEC has advised us that it"does not have the resources to police the industry sufficiently to ensure that false tipping does not occur or is consistently discovered,"and that, "[w]ithout the tippees' assistance, the Commission could not effectively prosecute false tipping -- a difficult practice to detect." Brief for SEC as Amicus Curiae 25. See also H.R.Rep. No. 93-355, p. 6 (1983) ("In recent years, the securities markets have grown dramatically in size and complexity, while Commission enforcement resources have declined"). Thus it is particularly important to permit Page 472 U. S. 316"litigation among guilty parties [that will serve] to expose their unlawful conduct and render them more easily subject to appropriate civil, administrative, and criminal penalties."Kuehnert v. Texstar Corp., 412 F.2d 700, 706, n. 3 (CA5 1969) (Godbold, J., dissenting). The in pari delicto defense, by denying any incentive to a defrauded tippee to bring suit against his defrauding tipper, would significantly undermine this important goal. [Footnote 28]Moreover, we believe that deterrence of insider trading most frequently will be maximized by bringing enforcement pressures to bear on the sources of such information -- corporate insiders and broker-dealers."The true insider or the broker-dealer is at the fountainhead of the confidential information. . . . If the prophylactic purpose of the law is to restrict the use of all material inside information until it is made available to the investing public, then the most effective means of carrying out this policy is to nip in the bud the source of the information, the tipper, by discouraging him from 'making the initial disclosure which is the first step in the chain of dissemination.' This can most readily be achieved by making unavailable to him the defense of in pari delicto when sued by his tippee upon charges based upon alleged misinformation."Nathanson v. Weis, Page 472 U. S. 317 Voisin, Cannon, Inc., 325 F. Supp. 50, 57-58 (SDNY 1971).In addition, corporate insiders and broker-dealers will in many circumstances be more responsive to the deterrent pressure of potential sanctions; they are more likely than ordinary investors to be advised by counsel, and thereby to be informed fully of the "allowable limits on their conduct." Kuehnert v. Texstar Corp., 412 F.2d at 706 (Godbold, J., dissenting). [Footnote 29] Although situations might well arise in which the relative culpabilities of the tippee and his insider source merit a different mix of deterrent incentives, we therefore conclude that, in tipper-tippee situations such as the one before us, the factors discussed above preclude recognition of the in pari delicto defense. [Footnote 30]Lower courts reaching a contrary conclusion have typically asserted that, absent a vigorous allowance of the in pari delicto defense, tippees would have, "in effect, an enforceable Page 472 U. S. 318 warranty that secret information is true," id. at 705, and thus no incentive not to trade on that information. [Footnote 31] These courts have reasoned, in other words, that tippees in such circumstances would be in "the enviable position of heads-I-win tails-you-lose,'" Wolfson v. Baker, 623 F.2d 1074, 1082 (CA5 1980), cert. denied, 450 U.S. 966 (1981) -- if the tip is correct, the tippee will reap illicit profits, while if the tip fails to yield the expected return, he can sue to recover damages.We believe the "enforceable warranty" theory is overstated, and overlooks significant factors that serve to deter tippee trading irrespective of whether the in pari delicto defense is allowed. First, tippees who bring suit in an attempt to cash in on their "enforceable warranties" expose themselves to the threat of substantial civil and criminal penalties for their own potentially illegal conduct. [Footnote 32] Second, plaintiffs in litigation under § 10(b) and Rule 10b-5 may only recover against defendants who have acted with scienter. See Ernst & Ernst v. Hochfelder, 425 U. S. 185 (1976). Thus,"if the tip merely fails to 'pan out,' or if the information itself proves accurate but the stock fails to move in the anticipated direction, the investor stands to lose all of his investment. Only in the situation where the investor has been deliberately defrauded will he be able to maintain a private suit in an attempt to recoup his money."730 F.2d at 1324, n. 3. [Footnote 33] Page 472 U. S. 319We therefore conclude that the public interest will most frequently be advanced if defrauded tippees are permitted to bring suit and to expose illegal practices by corporate insiders and broker-dealers to full public view for appropriate sanctions. As the Ninth Circuit emphasized in this case, there is no warrant to giving corporate insiders and broker-dealers "a license to defraud the investing public with little fear of prosecution." Id. at 1323.Affirmed

U.S. Supreme CourtBateman Eichler v. Berner, 472 U.S. 299 (1985)Bateman Eichler, Hill Richards, Inc. v. BernerNo. 84-679Argued April 15, 1985Decided June 11, 1985472 U.S. 299SyllabusRespondent investors (hereafter respondents) filed a damages action in Federal District Court, alleging that they incurred substantial trading losses after a securities broker (employed by petitioner) and the officer of a corporation fraudulently induced respondents to purchase stock in the corporation by divulging false and materially incomplete information about the corporation on the pretext that it was accurate inside information. Respondents contended that this alleged scheme violated, inter alia, § 10(b) of the Securities Exchange Act of 1934 and Securities and Exchange Commission Rule 10b-5 promulgated thereunder. The District Court dismissed the complaint on the ground that, because respondents themselves had violated the same laws under which recovery was sought by trading on what they believed was inside information, they were in pari delicto with the broker and corporate insider, and thus were barred from recovery. The Court of Appeals reversed.Held: There is no basis at this stage of the litigation for applying the in pari delicto defense to bar respondents' action. Pp. 472 U. S. 306-319.(a) An implied private damages action under the federal securities laws may be barred on the grounds of the plaintiff's own culpability only where (i) as a direct result of his own actions, the plaintiff bears at least substantially equal responsibility for the violations he seeks to redress, and (ii) preclusion of suit would not significantly interfere with the effective enforcement of the securities laws and protection of the investing public. Cf. Perma Life Mufflers, Inc. v. International Parts Corp., 392 U. S. 134. Pp. 472 U. S. 306-311.(b) Because a tippee's duty to disclose material nonpublic information typically is derivative from the insider-tipper's duty, the tippee in these circumstances cannot be said to be as culpable as the tipper whose breach of duty gave rise to the tippee's liability in the first place. Moreover, insiders and broker-dealers who selectively disclose material nonpublic information about the issuer commit a potentially broader range of violations than do tippees who trade on the basis of that information. Absent other culpable actions by a tippee that can fairly be said to outweigh these violations by insiders and broker-dealers, the tippee cannot Page 472 U. S. 300 properly be characterized as being of substantially equal culpability as his tippers. Pp. 472 U. S. 311-314.(c) Denying the in pari delicto defense in such circumstances will best promote protection of the investing public and the national economy. First, allowing a defrauded tippee to bring suit against his defrauding tipper promotes the important goal of exposing wrongdoers and rendering them more easily subject to civil, administrative, and criminal penalties. Second, deterrence of insider trading most frequently will be maximized by bringing enforcement pressures to bear on the sources of such information -- corporate insiders and broker-dealers. Third, insiders and broker-dealers will in many circumstances be more responsive to the deterrent pressures of potential sanctions. Finally, there are means other than the in pari delicto defense to deter tippee trading. Although there might well be situations in which the relative culpabilities of tippees and their sources merit a different mix of deterrent incentives, in cases such as the instant one, the public interest will most frequently be advanced if defrauded tippees are permitted to bring suit and to expose illegal practices by corporate insiders and broker-dealers to full public view for appropriate sanctions. Pp. 472 U. S. 315-319.730 F.2d 1319, affirmed.BRENNAN, J., delivered the opinion of the Court, in which WHITE, BLACKMUN, POWELL, REHNQUIST, STEVENS, and O'CONNOR, JJ., joined. BURGER, C.J., concurred in the judgment. MARSHALL, J., took no part in the decision of the case. Page 472 U. S. 301

1995_94-9088

statutory minimum sentences, and we adhere to our former decision on the subject.ILSD (lysergic acid diethylamide) is such a powerful narcotic that the average dose contains only 0.05 milligrams of the pure drug. The per-dose amount is so minute that in most instances LSD is transferred to a carrier medium and sold at retail by the dose, not by weight. In the typical case, pure LSD is dissolved in alcohol or other solvent, and the resulting solution is applied to paper or gelatin. The solvent evaporates; the LSD remains. The dealer cuts the paper or gel into single-dose squares for sale on the street. Users ingest the LSD by swallowing or licking the squares or drinking a beverage into which the squares have been mixed.In 1988, petitioner Meirl Neal was arrested for selling 11,456 doses of LSD on blotter paper. The combined weight of the LSD and the paper was 109.51 grams. Following a guilty plea in the United States District Court for the Central District of Illinois, petitioner was convicted of one count of possession of LSD with intent to distribute it, in violation of 21 U. S. C. § 841, and one count of conspiracy to possess LSD with intent to distribute it, in violation of 21 U. S. C. § 846. At the initial sentencing, the method for determining the weight of the illegal mixture or substance was the same under the Guidelines and the statute directing minimum sentences. The determinative amount was the whole weight of the blotter paper containing the drug. See United States Sentencing Commission, Guidelines Manual § 2D1.1, Drug Quantity Table, n. * (Nov. 1987) (1987 USSG). Because the total weight of the LSD and blotter paper exceeded 10 grams, the District Court found petitioner subject to the 10year mandatory minimum sentence specified in 21 U. S. C. § 841(b)(1)(A)(v). Under the version of the Sentencing Guidelines then in effect, the indicated sentence was even greater than the statutory minimum: The quantity of the287drugs and petitioner's prior convictions resulted in a Guidelines sentencing range of 188 to 235 months' imprisonment, even after an adjustment for petitioner's acceptance of responsibility for the crime. The District Court imposed concurrent sentences of 192 months' imprisonment on each count, to be followed by five years of supervised release.In November 1993, the United States Sentencing Commission revised the method of calculating the weight of LSD in the Sentencing Guidelines. United States Sentencing Commission, Guidelines Manual, App. C., Amdt. 488 (Nov. 1995) (1995 USSG). Departing from its former approach of weighing the entire mixture or substance containing LSD, the amended Guideline instructed courts to give each dose of LSD on a carrier medium a constructive or presumed weight of 0.4 milligrams. Id., § 2D1.1(c), n. (H). The revised Guideline was retroactive, id., App. C, Amdt. 502, and one month later petitioner filed a motion to modify his sentence, see 18 U. S. C. § 3582(c)(2). He contended that the weight of the LSD attributable to him under the amended Guidelines was 4.58 grams (11,456 doses x 0.4 milligrams). For that amount, the applicable sentencing range under the Guidelines would be 70 to 87 months of imprisonment. The 10-year statutory minimum of § 841(b)(1)(A)(v) was no bar to a reduced sentence, petitioner argued, because the presumptive-weight method of the Guidelines should also control the mandatory minimum calculation. The 4.58 grams attributable to him by the Guidelines method would be well short of the 10 grams necessitating a 10-year minimum sentence.The District Court, following our recent decision in Chapman v. United States, 500 U. S. 453 (1991), ruled that the blotter paper must be weighed in determining whether petitioner crossed the 10-gram threshold of § 841(b)(1)(A)(v). It held that the mandatory minimum sentence of 10 years still applied to petitioner notwithstanding the sentencing range under the Guidelines. Since the Guidelines no longer au-288thorized a sentence above the statutory minimum, the District Court reduced petitioner's sentence to 120 months on each count.On appeal, the Court of Appeals for the Seventh Circuit, sitting en bane, agreed with the District Court that a dual system now prevails in calculating LSD weights in cases like this, and it affirmed petitioner's sentence. 46 F.3d 1405 (1995).We granted certiorari to resolve a conflict in the Courts of Appeals over whether the revised Guideline governs the calculation of the weight of LSD for purposes of § 841(b)(1). 515 U. S. 1141 (1995). Compare United States v. Muschik, 49 F.3d 512, 518 (CA9 1995) (Guideline method should be used under §841(b)(1)), cert. pending, No. 95-156, with United States v. Boot, 25 F.3d 52, 55 (CA1 1994); United States v. Kinder, 64 F.3d 757, 759 (CA2 1995), cert. pending, No. 95-6746; United States v. Hanlin, 48 F.3d 121, 124 (CA3 1995); United States v. Pardue, 36 F.3d 429, 431 (CA5 1994), cert. denied, 514 U. S. 1113 (1995); United States v. Andress, 47 F.3d 839, 840 (CA6 1995) (per curiam); United States v. Stoneking, 60 F.3d 399, 402 (CA8 1995) (en bane), cert. pending, No. 95-5410; United States v. Mueller, 27 F.3d 494, 496497 (CAlO 1994); United States v. Pope, 58 F.3d 1567, 1570 (CAll 1995).IICongress has tried different punishment schemes to combat the menace of drug trafficking. Under the Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub. L. 91-513, 84 Stat. 1236, penalties depended upon whether or not a drug was classified as a narcotic. Chagrined by the resulting sentencing disparities, Congress amended the narcotics laws in 1984 to calculate penalties by the weight of the pure drug involved. See Chapman, 500 U. S., at 460461. Focusing on the pure drug, however, often allowed retail traffickers, who supplied street markets with mixed or diluted drugs ready for consumption, to receive sentences289lighter than what Congress deemed necessary. Id., at 461. In passing the Anti-Drug Abuse Act of 1986, Pub. L. 99-570, 100 Stat. 3207, "Congress adopted a 'market-oriented' approach to punishing drug trafficking, under which the total quantity of what is distributed, rather than the amount of pure drug involved, is used to determine the length of the sentence." Chapman, supra, at 461; H. R. Rep. No. 99845, pt. 1, pp. 11-12, 17 (1986). The Act provided for mandatory minimum sentences based on the weight of "a mixture or substance containing a detectable amount" of various controlled substances, including LSD. 21 U. S. C. §§ 841(b)(1)(A)(i)-(viii) and (B)(i)-(viii). Trafficking in 10 grams or more of a mixture or substance containing LSD earns the offender at least 10 years in prison. § 841(b)(1)(A)(v).In Chapman, we interpreted the provision of the Act that provided a mandatory minimum sentence of five years for trafficking in an LSD "mixture or substance" that weighed one gram or more, see § 841(b)(1)(B)(v). We construed "mixture" and "substance" to have their ordinary meaning, observing that the terms had not been defined in the statute or the Sentencing Guidelines and had no distinctive common-law meaning. 500 U. S., at 461-462. Reasoning that the "LSD is diffused among the fibers of the paper ... [and] cannot be distinguished from the blotter paper, nor easily separated from it," id., at 462, we held that the actual weight of the blotter paper, with its absorbed LSD, is determinative under the statute, id., at 468.Petitioner contends that the method approved in Chapman is no longer appropriate. In his view, the Commission intended its dose-based method to supplant the actualweight method used in Chapman, and we should not presume that the Commission would recognize two inconsistent schemes for sentencing LSD traffickers, cf. 1995 USSG § 2D1.1, comment., backg'd (stating purposes of making offense levels in § 2D1.1 "proportional to the levels established290by statute" and providing "a logical sentencing structure for drug offenses"). Petitioner concedes, as he must, that the Commission does not have the authority to amend the statute we construed in Chapman. He argues, nonetheless, that the Commission is the agency charged with interpretation of penalty statutes and expert in sentencing matters, so its construction of § 841(b)(1) should be given deference. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). Congress intended the Commission's rulemaking to respond to judicial decisions in developing a coherent sentencing regime, see Braxton v. United States, 500 U. S. 344, 348 (1991), so, petitioner contends, deference is appropriate even though the Commission's interpretation postdated Chapman. In the alternative, he urges that we reassess Chapman in light of the Commission's revised method, which was formed from careful study of retail drug markets. Although Chapman established that the weight of the blotter paper must be taken into account, it did not address how courts should do so. The Commission has filled the gap, petitioner maintains, by assigning a constructive weight to the LSD and carrier for each dose.While acknowledging that the Commission's expertise and the design of the Guidelines may be of potential weight and relevance in other contexts, we conclude that the Commission's choice of an alternative methodology for weighing LSD does not alter our interpretation of the statute in Chapman. In any event, principles of stare decisis require that we adhere to our earlier decision.The Commission was born of congressional disenchantment with the vagaries of federal sentencing and of the parole system. Mistretta v. United States, 488 U. S. 361, 366 (1989) (discussing the Sentencing Reform Act of 1984 and its legislative history). The Commission is directed to "establish sentencing policies and practices for the Federal criminal justice system" that meet congressional goals set forth in 18291u. S. C. § 3553(a)(2) and that, within a regime of individualized sentencing, eliminate unwarranted disparities in punishment of similar defendants who commit similar crimes. See 28 U. S. C. §§ 991(b)(1)(A)-(B). Congress also charged the Commission with the duty to measure and monitor the effectiveness of various sentencing, penal, and correctional practices. § 991(b)(2). In fulfilling its mandate, the Commission has the authority to promulgate, review, and revise binding guidelines to "establish a range of determinate sentences for categories of offenses and defendants according to various specified factors, among others." Mistretta, supra, at 368 (internal quotation marks omitted); see 28 U. S. C. §§ 994(a), (b), (c), and (0).Like 21 U. S. C. § 841(b)(1), the Sentencing Guidelines calibrate the punishment of drug traffickers according to the quantity of drugs involved in the offense. From their inception in 1987, the Guidelines have used a detailed Drug Quantity Table as a first step in determining the sentence. See 1995 USSG § 2D1.1(c); 1987 USSG § 2D1.1. The current Table has 17 tiers, each with specified weight ranges for different controlled substances. The weight ranges reflect the Commission's assessment of equivalent culpability among defendants who traffic in different types of drugs, and so all defendants in the same tier are assigned the same base offense level. See 1995 USSG § 2D1.1(c). Once the base offense level is adjusted for other factors, it yields a specific sentencing range depending on the defendant's criminal history. See 1995 USSG § 1B1.1.Although the mandatory-minimum statute and the Guidelines both turn upon drug quantities, the Commission itself has noted that "mandatory minimums are both structurally and functionally at odds with sentencing guidelines and the goals the guidelines seek to achieve." United States Sentencing Commission, Special Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System 26 (Aug. 1991).292"The sentencing guidelines system is essentially a system of finely calibrated sentences. For example, as the quantity of drugs increases, there is a proportional increase in the sentence. In marked contrast, the mandatory minimums are essentially a fiat, tariff-like approach to sentencing. Whereas guidelines seek a smooth continuum, mandatory minimums result in 'cliffs.' The 'cliffs' that result from mandatory minimums compromise proportionality, a fundamental premise for just punishment, and a primary goal of the Sentencing Reform Act." Id., at iii.Despite incongruities between the Guidelines and the mandatory sentencing statute, the Commission has sought to make the Guidelines parallel to the scheme of § 841(b)(1) in most instances. See 1995 USSG § 2D1.1, comment., n. 10 ("The Commission has used the sentences provided in, and equivalences derived from, the statute (21 U. S. C. § 841(b)(1)), as the primary basis for the guideline sentences"). As a general rule, the Commission adopts the same approach to weighing drugs as the statute does: "Unless otherwise specified, the weight of a controlled substance set forth in the table refers to the entire weight of any mixture or substance containing a detectable amount of the controlled substance." 1995 USSG § 2D1.1(c), n. (A); see also 1995 USSG § 2D1.1, comment., n. 1 (" 'Mixture or substance' as used in this guideline has the same meaning as in 21 U. S. C. § 841, except as expressly provided"); 1987 USSG § 2D1.1, n. * (weighing rule intended to be "[c]onsistent with the provisions of the Anti-Drug Abuse Act"). For most narcotics, there will be no inconsistency in the calculations of drug quantities.After study of the LSD trade, however, the Commission in 1993 decided it could no longer follow that general rule for LSD offenses and fulfill the statutory directive to promote proportionate sentencing. The Commission determined that "[b]ecause the weights of LSD carrier media vary293widely and typically far exceed the weight of the controlled substance itself, ... basing offense levels on the entire weight of the LSD and carrier medium would produce unwarranted disparity among offenses involving the same quantity of actual LSD (but different carrier weights), as well as sentences disproportionate to those for other, more dangerous controlled substances, such as PCP." 1995 USSG § 2D1.1, comment., backg'd. To remedy the problem, the Commission revised its Guideline to provide:"In the case of LSD on a carrier medium (e. g., a sheet of blotter paper), do not use the weight of the LSD/carrier medium. Instead, treat each dose of LSD on the carrier medium as equal to 0.4 mg of LSD for the purposes of the Drug Quantity Table." 1995 USSG § 2D1.1(c), n. (H).Under the amendment, a court determines the defendant's base offense level in the Drug Quantity Table by multiplying the number of doses of LSD involved by 0.4 milligrams. The Commission submitted the amendment to Congress, which did not disapprove it in the 180 days allotted by statute. See 28 U. S. C. § 994(p). The amended Guideline took effect on November 1, 1993, and was in force when petitioner was resentenced.As a threshold matter, it is doubtful that the Commission intended the constructive-weight method of the Guidelines to displace the actual-weight method that Chapman requires for statutory minimum sentences. The commentary, which is the authoritative construction of the Guidelines absent plain inconsistency or statutory or constitutional infirmity, Stinson v. United States, 508 U. S. 36, 38 (1993), states that the new method is to be used "for purposes of determining the base offense level." 1995 USSG § 2D1.1, comment., backg'd. The next paragraph of the commentary repeats the point: The new method will make "the offense level for LSD on a carrier medium ... [less than] that for the same294number of doses of PCP," "harmonize offense levels for LSD offenses with those for other controlled substances," and "avoid an undue influence of varied carrier weight on the applicable offense level." Ibid. This would be obscure language to choose if the Commission were attempting an interpretation of the statute as well as a revision of the Guidelines, for offense levels are not relevant to the mandatory-minimum calculation.Furthermore, after a catalog of reasons for adopting the dose-based method, the Commission ends with the observation that "[n]onetheless, this approach does not override the applicability of 'mixture or substance' for the purpose of applying any mandatory minimum sentence (see Chapman; § 5G1.1(b))." Ibid. The citation of Chapman in tandem with § 5G1.1(b), which advises that "[w]here a statutorily required minimum sentence is greater than the maximum of the applicable guideline range, the statutorily required minimum sentence shall be the guideline sentence," suggests that the Guidelines calculation is independent of the statutory calculation, and that the statute controls if they conflict. The Commission seems to do no more than acknowledge that, whether or not its method would be preferable for the statute and Guideline alike, it has no authority to override the statute as we have construed it.Were we, for argument's sake, to adopt petitioner's view that the Commission intended the commentary as an interpretation of § 841(b)(1), and that the last sentence of the commentary states the Commission's view that the dose-based method is consistent with the term "mixture or substance" in the statute, he still would not prevail. The Commission's dose-based method cannot be squared with Chapman. The Guideline does take into account some of the weight of the carrier medium (because the average weight of an LSD dose is 0.05 milligrams, 0.35 of the Commission's constructive weight per dose of 0.4 milligrams is attributable to the medium, see 1995 USSG § 2D1.1, comment., backg'd), but we295held in Chapman that § 841(b)(1) requires "the entire mixture or substance ... to be weighed when calculating the sentence." 500 U. S., at 459. In these circumstances, we need not decide what, if any, deference is owed the Commission in order to reject its alleged contrary interpretation. Once we have determined a statute's meaning, we adhere to our ruling under the doctrine of stare decisis, and we assess an agency's later interpretation of the statute against that settled law. Lechmere, Inc. v. NLRB, 502 U. S. 527, 536-537 (1992); Maislin Industries, U. S., Inc. v. Primary Steel, Inc., 497 U. S. 116, 131 (1990).Our reluctance to overturn precedents derives in part from institutional concerns about the relationship of the Judiciary to Congress. One reason that we give great weight to stare decisis in the area of statutory construction is that "Congress is free to change this Court's interpretation of its legislation." Illinois Brick Co. v. Illinois, 431 U. S. 720, 736 (1977). We have overruled our precedents when the intervening development of the law has "removed or weakened the conceptual underpinnings from the prior decision, or where the later law has rendered the decision irreconcilable with competing legal doctrines or policies." Patterson v. McLean Credit Union, 491 U. S. 164, 173 (1989) (citations omitted). Absent those changes or compelling evidence bearing on Congress' original intent, NLRB v. Longshoremen, 473 U. S. 61, 84 (1985), our system demands that we adhere to our prior interpretations of statutes. Entrusted within its sphere to make policy judgments, the Commission may abandon its old methods in favor of what it has deemed a more desirable "approach" to calculating LSD quantities, cf. 1995 USSG § 2D1.1, comment., backg'd. We, however, do not have the same latitude to forsake prior interpretations of a statute. True, there may be little in logic to defend the statute's treatment of LSD; it results in significant disparity of punishment meted out to LSD offenders relative to other narcotics traffickers. (Although the number of doses peti-296tioner sold seems high, the quantities of other narcotics a defendant would have to sell to receive a comparable sentence under the statute yield far more doses, see United States v. Marshall, 908 F.2d 1312, 1334 (CA7 1990) (Posner, J., dissenting), aff'd sub nom. Chapman v. United States, 500 U. S. 453 (1991).) Even so, Congress, not this Court, has the responsibility for revising its statutes. Were we to alter our statutory interpretations from case to case, Congress would have less reason to exercise its responsibility to correct statutes that are thought to be unwise or unfair.Like Chapman, this case involves a petitioner who sold LSD on blotter paper, the "carrier of choice" involved in "the vast majority of cases." 500 U. S., at 466. Just as we declined in Chapman to entertain "hypothetical cases ... involving very heavy carriers and very little LSD" in resolving a due process challenge, ibid., we do not address how § 841(b)(1) should be applied in those cases.We hold that § 841(b)(1) directs a sentencing court to take into account the actual weight of the blotter paper with its absorbed LSD, even though the Sentencing Guidelines require a different method of calculating the weight of an LSD mixture or substance. The judgment of the Court of Appeals is affirmed.It is so ordered

OCTOBER TERM, 1995SyllabusNEAL v. UNITED STATESCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUITNo. 94-9088. Argued December 4, 1995-Decided January 22,1996When the District Court first sentenced petitioner Nealon two pleabargained convictions involving possession of LSD with intent to distribute, the amount of LSD sold by a drug trafficker was determined, under both the federal statute directing minimum sentences and the United States Sentencing Commission's Guidelines Manual, by the whole weight of the blotter paper or other carrier medium containing the drug. Because the combined weight of the blotter paper and LSD actually sold by Neal was 109.51 grams, the court ruled, among other things, that he was subject to 21 U. S. C. § 841(b)(1)(A)(v), which imposes a lO-year mandatory minimum sentence on anyone convicted of trafficking in more than 10 grams of "a mixture or substance containing a detectable amount" of LSD. After the Commission revised the Guidelines' calculation method by instructing courts to give each dose of LSD on a carrier medium a constructive or presumed weight, Neal filed a motion to modify his sentence, contending that the weight of the LSD attributable to him under the amended Guidelines was only 4.58 grams, well short of § 841(b)(1)(A)(v)'s 10-gram requirement, and that the Guidelines' presumptive-weight method controlled the mandatory minimum calculation. The District Court followed Chapman v. United States, 500 U. S. 453, 468, in holding, inter alia, that the actual weight of the blotter paper, with its absorbed LSD, was determinative of whether Neal crossed the lO-gram threshold and that the lO-year mandatory minimum sentence still applied to him notwithstanding the Guidelines. In affirming, the en banc Seventh Circuit agreed with the District Court that a dual system now prevails in calculating LSD weights in cases like this.Held: Section 841(b)(1) directs a sentencing court to take into account the actual weight of the blotter paper with its absorbed LSD, even though the Sentencing Guidelines require a different method of calculating the weight of an LSD mixture or substance. The Court rejects petitioner's contentions that the revised Guidelines are entitled to deference as a construction of § 841(b)(1) and that those Guidelines require reconsideration of the method used to determine statutory minimum sentences. While the Commission's expertise and the Guidelines' design may be of potential weight and relevance in other contexts, the Commission's choice of an alternative methodology for weighing LSD does not alter285Chapman's interpretation of the statute. In any event, stare decisis requires that the Court adhere to Chapman in the absence of intervening statutory changes casting doubt on the case's interpretation. It is doubtful that the Commission intended the Guidelines to displace Chapman's actual-weight method for statutory minimum sentences, since the Commission's authoritative Guidelines commentary indicates that the new method is not an interpretation of the statute, but an independent calculation, and suggests that the statute controls if it conflicts with the Guidelines. Moreover, the Commission's dose-based method cannot be squared with Chapman. In these circumstances, this Court need not decide what, if any, deference is owed the Commission in order to reject its contrary interpretation. Once the Court has determined a statute's meaning, it adheres to its ruling under stare decisis and assesses an agency's later interpretation of the statute against that settled law. It is the responsibility of Congress, not this Court, to change statutes that are thought to be unwise or unfair. Pp. 288-296.46 F.3d 1405, affirmed.KENNEDY, J., delivered the opinion for a unanimous Court.Donald Thomas Bergerson, by appointment of the Court, post, p. 963, argued the cause for petitioner. With him on the briefs was Michael J. Costello.Paul R. Q. Wolfson argued the cause for the United States. With him on the brief were Solicitor General Days, Acting Assistant Attorney General Keeney, and Deputy Solicitor General Dreeben. *JUSTICE KENNEDY delivered the opinion of the Court. The policy of sentencing drug offenders based on the amount of drugs involved, straightforward enough in its simplest formulation, gives rise to complexities, requiring us again to address the methods for calculating the weight of LSD sold by a drug trafficker. We reject petitioner's contention that the revised system for determining LSD amounts under the United States Sentencing Guidelines requires reconsideration of the method used to determine*Peter Goldberger and Barbara E. Bergman filed a brief for the National Association of Criminal Defense Lawyers et al. as amici curiae urging reversal.286Full Text of Opinion

1962_236

MR. JUSTICE HARLAN delivered the opinion of the Court.The petitioner, German S. Lopez, was tried in a federal court on a four-count indictment charging him with attempted bribery of an Internal Revenue Agent, Roger S. Davis, in violation of 18 U.S.C. § 201. [Footnote 1] The questions Page 373 U. S. 429 before us for review are: (1) whether the trial court's treatment of "entrapment" constituted reversible error; and (2) whether Davis' testimony relating to a conversation with petitioner on October 24, 1961, which formed the basis of the three counts of the indictment on which petitioner was convicted, and a wire recording of that conversation, were properly admitted into evidence.The evidence at the trial related to three meetings between Lopez and Davis that took place at Clauson's Inn, situated at North Falmouth, Massachusetts, and operated by Lopez under a lease. Davis, who was investigating possible evasion of excise taxes in the area, first visited the Inn on the afternoon of August 31, 1961, when he asked Lopez whether there was any dancing, singing or other entertainment in the evenings, and showed him an advertisement for the Inn which stated that there was. Lopez said there was no entertainment, and denied responsibility for the advertisement. Davis returned again that evening, and saw dancing in the bar and lounge. He described the Inn in a report to his superior the next day as a "potential delinquent," and said that he would "follow up."Davis next returned to the Inn on October 21, when he again saw dancing in the bar and lounge, and spoke with Lopez. Davis' testimony about this meeting may be summarized as follows: early in the discussion, Davis told Lopez that he thought the establishment would be liable for a cabaret tax, and asked to see the books, but Lopez resisted, and suggested that they continue the conversation in his office. Once there, Lopez suggested that he would like to avoid all "aggravation," and to reach an "agreement." After Davis said he could not drop the matter, and would return the following week, Lopez said he didn't wish to "insult" Davis, and that he didn't know Page 373 U. S. 430 whether to take him into his "confidence." Receiving no reply, Lopez put some money on the desk, saying:"You can drop this case. Here's $200. Buy your wife a present. And I'll have more money for you at Christmas time. This is all I have now."Davis balked, and Lopez urged him to take the money and to bring his wife and family for a weekend "as my guest." Following some questioning as to the extent of Lopez' business, during the course as which Davis estimated a year's tax as running to $3,000, Lopez added another $220 to the money on the desk, stating that he did not want to be bothered with returns for past years, but would file a return for the current quarter. More importunities on Lopez' part followed, and Davis finally took the money. Before Davis left, Lopez again said he would file a return for the current quarter, and asked Davis to come back on October 24.Lopez, in his version of the events of October 21, admitted giving the $420 to Davis, but said the money was given in an effort to have Davis prepare his returns and get his books in proper order. According to Lopez' testimony, he told Davis that he would file returns from October 17 on, since, on that date, the Inn had changed its policy to one of entertainment.After leaving the Inn, Davis reported the meeting to a fellow agent and to his superior, and turned over the $420 to a Regional Inspector. On the morning of October 24, he met with four Internal Revenue Inspectors, who instructed him to keep his appointment with Lopez, to "pretend to play along with the scheme," and to draw the conversation back to the meeting of October 21. Davis was then equipped with two electronic devices, a pocket battery-operated transmitter (which subsequently failed to work) and a pocket wire recorder, which recorded the conversation between Lopez and Davis at their meeting later in the day. Page 373 U. S. 431According to the recording of that conversation, Davis suggested they talk in Lopez' office, and, once inside the office, Davis started to explain the excise tax form and to discuss the return. Before any computations were made, Lopez said he had never thought he needed to file a cabaret tax return, and the conversation then continued:"Lopez: . . . Whatever we decide to do from here on, I'd like you to be on my side and visit with me. Deduct anything you think you should, and I'll be happy to . . . because you may prevent something coming up in the office. If you think I should be advised about it, let me know. Pick up the phone. I can meet you in town, or anywhere you want. For your information the other night I have to. . . .""Davis: Well, you know I've got a job to do.""Lopez: Yes, and Uncle Sam is bigger than you and I are, and we pay a lot of taxes, and if we can benefit something by it individually, let's keep it that way, and, believe me, anything that transpires between you and I, not even my wife or my accountant or anybody is aware of it. So I want you to feel that way about it. [Footnote 2]"The two then discussed receipts and the potential tax liability for 1959-1961, and Lopez protested that Davis' estimates were very high, although he did not deny the fact of liability. After Davis said, "I don't want to get greedy or anything," Lopez gave him $200, and, later in the conversation, told Davis he could bring his family down for a free weekend and should "[c]ome in every so often and I'll give you a couple of hundred dollars every time you come in." At one point, Lopez said,"Now if you suggest that I should file returns from this point on, I'll do it. If you should suggest that, I can get by Page 373 U. S. 432 without doing it, then just drop in every so often, and I'll . . ."Lopez also confirmed that he had given Davis $420 on October 21.Lopez, in his testimony, did not question the accuracy of the recording, and, in fact, said little more about the meeting of October 24 than that Davis had gone into a lot of figures, and that he (Lopez) had become emotionally upset because he felt that Davis "was not there for the purpose that he came in there for on October 21st." He did not suggest that Davis had induced him to offer any bribes.The first of the four counts in the ensuing indictment charged that, at the meeting of October 21, Lopez gave Davis the $420 with intent to induce Davis, among other things, "to refrain from making an examination of the books and records relating to sales and receipts" at the Inn from 1959-1961. [Footnote 3] The remaining three counts related to the meeting of October 24, and charged three separate acts of attempted bribery, each for the purpose of influencing Davis to aid in concealing sales, receipts, and any cabaret tax due for the years 1959-1961. The acts were the giving of $200 to Davis (Count 2), the promise of an additional $200 the following month (Count 3), and the promise of a free weekend for Davis and his family (Count 4).Prior to trial, petitioner filed a motion to suppress as evidence the wire recording of the October 24 conversation between Lopez and Davis. After hearing, this motion was denied. At trial, the motion was renewed, and again denied, and the recording was received in evidence. Petitioner did not object to the testimony of Agent Davis relating to the October 24 conversation. Page 373 U. S. 433In his charge to the jury, the trial judge emphasized the presumption of innocence and the burden on the Government to establish "every essential element" of the crime beyond a reasonable doubt. He then detailed what these essential elements were, and called particular attention to the contrast between the specific intent charged in Count 1 -- to prevent an examination of books and records -- and the more general intent charged in the other three counts -- to conceal liability for the tax in question. He strongly suggested that the specific intent alleged in Count 1 had not been established beyond a reasonable doubt.Although defense counsel had briefly adverted to the possibility of "entrapment" in his summation to the jury, he did not request judgment of acquittal on that ground. Nor did he request any instruction on the point, or offer at the trial any evidence particularly aimed at such a defense . Nevertheless, the trial judge did charge on entrapment. [Footnote 4] Petitioner made no objection to this instruction, or to any other aspect of the charge. Page 373 U. S. 434The jury acquitted on Count 1 and found petitioner guilty on Counts 2, 3 and 4. A motion for judgment notwithstanding the verdict "as a matter of law on the evidence" was denied, and petitioner was sentenced to a term of imprisonment for one year.Following per curiam affirmance of the conviction by the Court of Appeals for the First Circuit, 305 F.2d 825, we granted certiorari, 371 U.S. 859, to consider the two questions stated at the outset of this opinion. Supra, pp. 373 U. S. 428-429.IThe defense of entrapment, its meaning, purpose, and application, are problems that have sharply divided this Court on past occasions. See Sorrells v. United States, 287 U. S. 435; Sherman v. United States, 356 U. S. 369; Masciale v. United States, 356 U. S. 386. Whether, in the absence of a conclusive showing, the defense is for the court or the jury, and whether the controlling standard looks only to the conduct of the Government, or also takes into account the predisposition of the defendant, are among the issues that have been mooted. We need not, however, concern ourselves with any of these questions here, for, under any approach, petitioner's belated claim of entrapment is insubstantial, and the record fails to show any prejudice that would warrant reversal on this score.The conduct with which the defense of entrapment is concerned is the manufacturing of crime by law enforcement officials and their agents. Such conduct, of course, is far different from the permissible stratagems involved in the detection and prevention of crime. Thus, before Page 373 U. S. 435 the issue of entrapment can fairly be said to have been presented in a criminal prosecution, there must have been at least some showing of the kind of conduct by government agents which may well have induced the accused to commit the crime charged.In the case before us, we think that such a showing has not been made. It is undisputed that, at the meeting of October 21, petitioner made an unsolicited offer of $420 to Agent Davis. The references to the October 21 offer in the recorded conversation scarcely leave room for doubt that this offer was made for the same general purpose as the bribes offered at the October 24 meeting: to obtain Davis' assistance in concealing any cabaret tax liability for past and present periods. [Footnote 5] As to the meeting of October 24, the recording shows that petitioner's improper overtures began almost at the outset of the discussion, when he stated: "Deduct anything you think you should, and I'll be happy to . . . because you may prevent something coming up in the office." This and similar statements preceded Davis' computations, [Footnote 6] and his comment, "I don't want to get greedy," Page 373 U. S. 436 on which petitioner so heavily relies. Moreover, we find nothing in the recording as a whole, or in petitioner's own testimony, to suggest that his conduct on October 24 was instigated by Davis. Upon any reasonable assessment of the record, it seems manifest that all that Davis was doing was to afford an opportunity for the continuation of a course of criminal conduct, upon which the petitioner had earlier voluntarily embarked, under circumstances susceptible of proof.It is therefore evident that, under any theory, entrapment has not been shown as a matter of law. Indeed, the paucity of the showing might well have justified a refusal to instruct the jury at all on entrapment. [Footnote 7] But, in any event, no request for such an instruction was made, and there was no objection to the instruction given. Under these circumstances, petitioner may not now challenge the form of that instruction. See Fed.Rules Crim.Proc., 30; [Footnote 8] Moore v. United States, 104 U.S.App.D.C. 327, 262 F.2d 216; Martinez v. United States, 300 F.2d 9. Nor was there on this score any such plain error in the charge, affecting substantial rights, as would warrant reversal despite the failure to object. See Fed.Rules Crim.Proc., 52(b). Since the record does not disclose a sufficient showing that petitioner was induced to offer a bribe, we cannot conclude that he was prejudiced by the charge on burden of proof, even assuming that the burden called for Page 373 U. S. 437 was too great. By the same token, we are not persuaded that, in this case, it is significant to determine whether entrapment should turn on the effect of the Government's conduct on "men of ordinary firmness," as the court charged, or on the effect on the particular defendant. Accordingly, we do not reach the question whether the charge was in every respect a correct statement of the law. It is enough to say that, in the circumstances of this case, there was, in any event, no reversible error.IIPetitioner's remaining contentions concern the admissibility of the evidence relating to his conversation with Davis on October 24. His argument is primarily addressed to the recording of the conversation, which he claims was obtained in violation of his rights under the Fourth Amendment. [Footnote 9] Recognizing the weakness of this position if Davis was properly permitted to testify about the same conversation, petitioner now challenges that testimony as well, although he failed to do so at the trial. His theory is that, in view of Davis' alleged falsification of his mission, he gained access to petitioner's office by misrepresentation, and all evidence obtained in the office -- i.e., his conversation with petitioner -- was illegally "seized." In support of this theory, he relies on Gouled v. United States, 255 U. S. 298, and Silverman v. United States, 365 U. S. 505. But, under the circumstances of the present case, neither of these decisions lends any comfort to petitioner, and indeed their rationale buttresses Page 373 U. S. 438 the conclusion that the evidence was properly admitted. See On Lee v. United States, 343 U. S. 747. [Footnote 10]We need not be long detained by the belated claim that Davis should not have been permitted to testify about the conversation of October 24. Davis was not guilty of an unlawful invasion of petitioner's office simply because his apparent willingness to accept a bribe was not real. Compare Wong Sun v. United States, 371 U. S. 471. He was in the office with petitioner's consent, and, while there, he did not violate the privacy of the office by seizing something surreptitiously without petitioner's knowledge. Compare Gouled v. United States, supra. The only evidence obtained consisted of statements made by Lopez to Davis, statements which Lopez knew full well could be used against him by Davis if he wished. We decline to hold that, whenever an offer of a bribe is made in private and the offeree does not intend to accept, that offer is a constitutionally protected communication.Once it is plain that Davis could properly testify about his conversation with Lopez, the constitutional claim relating to the recording of that conversation emerges in proper perspective. The Court has, in the past, sustained instances of "electronic eavesdropping" against constitutional challenge when devices have been used to enable government agents to overhear conversations which would have been beyond the reach of the human ear. See, e.g., Olmstead v. United States, 277 U. S. 438; Goldman v. United States, 316 U. S. 129. It has been insisted only that the electronic device not be planted by an unlawful physical invasion of a constitutionally Page 373 U. S. 439 protected area. Silverman v. United States, supra. The validity of these decisions is not in question here. Indeed, this case involves no "eavesdropping" whatever in any proper sense of that term. The Government did not use an electronic device to listen in on conversations it could not otherwise have heard. Instead, the device was used only to obtain the most reliable evidence possible of a conversation in which the Government's own agent was a participant, and which that agent was fully entitled to disclose. And the device was not planted by means of an unlawful physical invasion of petitioner's premises under circumstances which would violate the Fourth Amendment. It was carried in and out by an agent who was there with petitioner's assent, and it neither saw nor heard more than the agent himself.The case is thus quite similar to Rathbun v. United States, 355 U. S. 107, in which we sustained against statutory attack the admission in evidence of the testimony of a policeman as to a conversation he overheard on an extension telephone with the consent of a party to the conversation. The present case, if anything, is even clearer, since, in Rathbun, it was conceded by all concerned "that either party may record the conversation and publish it." 355 U.S. at 355 U. S. 110. (Emphasis added.)Stripped to its essentials, petitioner's argument amounts to saying that he has a constitutional right to rely on possible flaws in the agent's memory, or to challenge the agent's credibility without being beset by corroborating evidence that is not susceptible of impeachment. For no other argument can justify excluding an accurate version of a conversation that the agent could testify to from memory. [Footnote 11] We think the risk that petitioner took in offering a bribe to Davis fairly included the risk that the offer would be accurately reproduced in court, whether by faultless memory or mechanical recording. Page 373 U. S. 440It is urged that, whether or not the recording violated petitioner's constitutional rights, we should prevent its introduction in evidence in this federal trial in the exercise of our supervisory powers. But the court's inherent power to refuse to receive material evidence is a power that must be sparingly exercised. Its application in the present case, where there has been no manifestly improper conduct by federal officials, would be wholly unwarranted. [Footnote 12]The function of a criminal trial is to seek out and determine the truth or falsity of the charges brought against the defendant. Proper fulfillment of this function requires that, constitutional limitations aside, all relevant, competent evidence be admissible unless the manner in which it has been obtained -- for example, by violating some statute or rule of procedure -- compels the formulation of a rule excluding its introduction in a federal court. See, e.g., McNabb v. United States, 318 U. S. 332; Mallory v. United States, 354 U. S. 449.When we look for the overriding considerations that might require the exclusion of the highly useful evidence involved here, we find nothing. There has been no invasion of constitutionally protected rights, and no violation of federal law or rules of procedure. Indeed, there has not even been any electronic eavesdropping on a private conversation which government agents could not otherwise have overheard. There has, in short, been no act of any kind which could justify the creation of an exclusionary rule. We therefore conclude that the judgment of the Court of Appeals must be affirmed.Affirmed

U.S. Supreme CourtLopez v. United States, 373 U.S. 427 (1963)Lopez v. United StatesNo. 236Argued January 14, 1963Decided May 27, 1963373 U.S. 427SyllabusIn a Federal District Court, petitioner was convicted of attempting to bribe an Internal Revenue Agent in violation of 18 U.S.C. § 201. The Agent was investigating possible evasion of excise taxes on cabarets. On a visit to petitioner's inn, the Agent saw dancing in the bar and lounge, spoke to petitioner about it, and suggested that the inn might be liable for a cabaret tax. According to the Agent's testimony, petitioner suggested, after some discussion, that the Agent could drop the case, gave him $420, and promised more in the future. Petitioner also promised to file a return for the current quarter, and invited the Agent to return a few days later. When he kept that appointment, the Agent carried with him a pocket wire recorder which recorded his conversation with petitioner. The Agent produced an excise tax return form and started to explain it. Petitioner told the Agent that he wanted the Agent to be on petitioner's side, gave him some money, and promised more. At the trial, the Agent testified concerning his conversations with petitioner, and his testimony was corroborated by the admission in evidence of the recording of the last conversation. Petitioner's counsel did not request acquittal on the ground of entrapment, request any instruction on that subject, or object to the instructions actually given. He did object to the admission in evidence of the recording of the Agent's conversation with petitioner, on the ground that it was inadmissible as the fruit of a fraudulent entry into petitioner's private office in violation of the Fourth Amendment.Held:1. On the record in this case, entrapment was not shown as a matter of law; and, if there was any error in the trial court's instructions on this subject, it was not reversible error. Pp. 373 U. S. 434-437.2. Both the Agent's testimony pertaining to his conversation with petitioner and the wire recording of that conversation were properly admitted in evidence. Pp. 373 U. S. 437-440.(a) The Agent was not guilty of an unlawful invasion of petitioner's office in violation of hi rights under the Fourth Amendment Page 373 U. S. 428 simply because his apparent willingness to accept a bribe was not real. Pp. 373 U. S. 437-438.(b) The secret making of the wire recording of the conversation did not violate petitioner's rights under the Fourth Amendment. Pp. 373 U. S. 438-439.(c) This Court should not, in the exercise of its supervisory powers, prevent the introduction of the recording in evidence, since there was no manifestly improper conduct by federal officials. P. 373 U. S. 440.305 F.2d 825, affirmed.

1991_90-954

tion should be granted only if the party satisfies the heavy burden of convincing the court that it agreed to the decree in good faith, made a reasonable effort to comply, and should be relieved of the undertaking under Rule 60(b). Accordingly, on remand the District Court should consider whether the upsurge in inmate population was foreseen by petitioners. Despite that court's statement that it was, the decree itself and aspects of the record indicate that the increase may have been unanticipated. To relieve petitioners from the promise to provide single cells for pretrial detainees based on the increased jail population does not necessarily violate the decree's basic purpose of providing a remedy for what had been found-based on a variety of factors, including double celling-to be unconstitutional conditions in the old jail. The rule cannot be that modifications of one of a decree's terms defeats its purpose, since modification would then be all but impossible. Thus, the District Court erred in holding that, even under a standard more flexible than Swift's, modification of the single cell requirement was necessarily forbidden. Pp. 383-387.(b) A decree must be modified if one or more of the obligations placed upon the parties later becomes impermissible under federal law, and may be modified when the statutory or decisional law has changed to make legal what the decree was designed to prevent. The Bell holding, which made clear that double celling is not in all cases unconstitutional, was not, in and of itself, a change in law requiring modification of the decree at issue. Since that holding did not cast doubt on the legality of single celling, the possibility that such a holding would be issued must be viewed as having been immaterial to petitioners when they signed the decree; i. e., they preferred even in the event of such a holding to agree to a decree which called for providing single cells in the new jail. To hold that a clarification in the law automatically opens the door for relitigation of the merits of every affected decree would undermine the finality of such agreements and could serve as a disincentive to settle institutional reform litigation. Nevertheless, a decision that merely clarifies the law could constitute a change supporting modification if the parties had based their agreement on a misunderstanding of the governing law. The decree at issue declares that it "sets forth a program which is both constitutionally adequate and constitutionally required" (emphasis added), and if petitioners can establish on remand that the parties believed that single celling was constitutionally mandated, this misunderstanding could form a basis for modification. Pp. 387-390.(c) Once a moving party has established a change in fact or in law warranting modification of a consent decree, the district court should determine whether a proposed modification is suitably tailored to the370changed circumstances. A modification must not perpetuate or create a constitutional violation. Thus, if respondents are correct that Bell is factually distinguishable and that double celling at the new jail would violate pretrial detainees' constitutional rights, modification should not be granted. Because a consent decree is a final judgment that may be reopened only to the extent that equity requires, a proposed modification should not strive to rewrite the decree so that it conforms to the constitutional floor, but should merely resolve the problems created by the change. Within these constraints, the public interest and considerations of comity require that the district court defer to local government administrators to resolve the intricacies of implementing a modification. Although financial constraints may not be used to justify constitutional violations, they are a legitimate concern of government defendants in institutional reform litigation and therefore are appropriately considered in tailoring a modification. Pp. 390-393.915 F.2d 1557, vacated and remanded.WHITE, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and SCALIA, KENNEDY, and SOUTER, JJ., joined. O'CONNOR, J., filed an opinion concurring in the judgment, post, p. 393. STEVENS, J., filed a dissenting opinion, in which BLACKMUN, J., joined, post, p. 399. THOMAS, J., took no part in the consideration or decision of the cases.Chester A. Janiak argued the cause for petitioners in No. 90-954. With him on the briefs were Thomas D. Burns, Peter J. Schneider, Ann E. Merryfield, and Robert C. Rufo, pro se. John T. Montgomery, First Assistant Attorney General of Massachusetts, argued the cause for petitioner in No. 90-1004. With him on the briefs were Scott Harshbarger, Attorney General, and Jon Laramore, Thomas A. Barnico, and Douglas H. Wilkins, Assistant Attorneys General.Max D. Stern argued the cause for respondents in both cases. With him on the brief were Lynn Weissberg and Alan B. Morrison.ttBriefs of amici curiae urging reversal were filed for the State of New York by Robert Abrams, Attorney General, Q Peter Sherwood, Solicitor General, Lawrence S. Kahn, Deputy Solicitor General, and Barbara B. Butler, Assistant Attorney General; for the State of Tennessee et al. by Charles W Burson, Attorney General of Tennessee, Michael W Catalano, Deputy Attorney General, Joel I. Klein, Paul M. Smith, and Richard G.371JUSTICE WHITE delivered the opinion of the Court.In these cases, the District Court denied a motion of the sheriff of Suffolk County, Massachusetts, to modify a consentTaranto, Charles Cole, Attorney General of Alaska, Grant Woods, Attorney General of Arizona, Winston Bryant, Attorney General of Arkansas, Dan Lungren, Attorney General of California, Gale Norton, Attorney General of Colorado, Charles M. Oberly III, Attorney General of Delaware, Robert A. Butterworth, Attorney General of Florida, Michael J. Bowers, Attorney General of Georgia, Elizabeth Barrett-Anderson, Attorney General of Guam, Warren Price III, Attorney General of Hawaii, Larry EchoHawk, Attorney General of Idaho, Roland W Burris, Attorney General of Illinois, Linley E. Pearson, Attorney General of Indiana, Bonnie Campbell, Attorney General of Iowa, Robert T. Stephan, Attorney General of Kansas, Fred Cowan, Attorney General of Kentucky, William J. Guste, Jr., Attorney General of Louisiana, Michael E. Carpenter, Attorney General of Maine, J. Joseph Curran, Jr., Attorney General of Maryland, Frank J. Kelley, Attorney General of Michigan, Hubert H. Humphrey III, Attorney General of Minnesota, Mike Moore, Attorney General of Mississippi, William L. Webster, Attorney General of Missouri, Frankie Sue Del Papa, Attorney General of Nevada, John P. Arnold, Attorney General of New Hampshire, Robert J. Del Tufo, Attorney General of New Jersey, Tom Udall, Attorney General of New Mexico, Lacy H. Thornburg, Attorney General of North Carolina, Nicholas Spaeth, Attorney General of North Dakota, Lee Fisher, Attorney General of Ohio, Robert H. Henry, Attorney General of Oklahoma, Dave Frohnmayer, Attorney General of Oregon, Ernest D. Preate, Jr., Attorney General of Pennsylvania, Hector Rivera-Cruz, Attorney General of Puerto Rico, James E. O'Neil, Attorney General of Rhode Island, T. Travis Medlock, Attorney General of South Carolina, Mark "Barney" Barnett, Attorney General of South Dakota, Paul Van Dam, Attorney General of Utah, Jeffrey L. Amestoy, Attorney General of Vermont, Rosalie Ballentine, Acting Attorney General of the Virgin Islands, Mary Sue Terry, Attorney General of Virginia, Ken Eikenberry, Attorney General of Washington, Mario Palumbo, Attorney General of West Virginia, and Joseph B. Meyer, Attorney General of Wyoming; for the City of New York by Victor A. Kovner, Leonard J. Koerner, Fay Leoussis, and Timothy J. O'Shaughnessy; for the International City Management Association et al. by Richard Ruda, Zachary D. Fasman, and Mark L. Gerchick; and for Michael J. Ashe, Jr., Sheriff of Hampden County, et al. by Edward J. McDonough, Jr.Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by John A. Powell, Steven R. Shapiro, John372decree entered to correct unconstitutional conditions at the Suffolk County Jail. The Court of Appeals affirmed. The issue before us is whether the courts below applied the correct standard in denying the motion. We hold that they did not and remand these cases for further proceedings.IThis litigation began in 1971 when inmates sued the Suffolk County sheriff, the Commissioner of Correction for the State of Massachusetts, the mayor of Boston, and nine city councilors, claiming that inmates not yet convicted of the crimes charged against them were being held under unconstitutional conditions at what was then the Suffolk County Jail. The facility, known as the Charles Street Jail, had been constructed in 1848 with large tiers of barred cells. The numerous deficiencies of the jail, which had been treated with what a state court described as "malignant neglect," Attorney General v. Sheriff of Suffolk County, 394 Mass. 624, 625, 477 N. E. 2d 361, 362 (1985), are documented in the decision of the District Court. See Inmates of Suffolk County Jail v. Eisenstadt, 360 F. Supp. 676, 679-684 (Mass. 1973). The court held that conditions at the jail were constitutionally deficient:"As a facility for the pretrial detention of presumptively innocent citizens, Charles Street Jail unnecessarily and unreasonably infringes upon their most basic liberties, among them the rights to reasonable freedom ofReinstein, Elizabeth Alexander, Alexa P. Freeman, and Alvin J. Bronstein; for the Center for Dispute Settlement by C. Lani Guinier; for the Inmates of the Lorton Central Facility by Peter J. Nickles, Bruce N Kuhlik, and Alan A. Pemberton; for the Lawyers' Committee for Civil Rights Under Law of the Boston Bar Association by John C. Englander; and for Allen F. Breed et al. by Sheldon Krantz.Solicitor General Starr, Assistant Attorney General Gerson, Deputy Solicitor General Shapiro, Harriet S. Shapiro, Robert E. Kopp, and Thomas M. Bondy filed a brief for the United States as amicus curiae.373motion, personal cleanliness, and personal privacy. The court finds and rules that the quality of incarceration at Charles Street is 'punishment' of such a nature and degree that it cannot be justified by the state's interest in holding defendants for trial; and therefore it violates the due process clause of the Fourteenth Amendment." Id., at 686.1The court permanently enjoined the government defendants: "(a) from housing at the Charles Street Jail after November 30, 1973 in a cell with another inmate, any inmate who is awaiting trial and (b) from housing at the Charles Street Jail after June 30, 1976 any inmate who is awaiting trial." Id., at 691. The defendants did not appeaI.2In 1977, with the problems of the Charles Street Jail still unresolved, the District Court ordered defendants, including the Boston City Council, to take such steps and expend the funds reasonably necessary to renovate another existing facility as a substitute detention center. Inmates of Suffolk County Jail v. Kearney, Civ. Action No. 71-162-G (Mass.,1 The court was of the view that cases dealing with pretrial detention are more appropriately analyzed under the Due Process Clause of the Fourteenth Amendment than under the Cruel and Unusual Punishments Clause of the Eighth Amendment, but thought that conditions at the Charles Street Jail were also vulnerable under the Eighth Amendment. Inmates of Suffolk County Jail v. Eisenstadt, 360 F. Supp., at 688.2 However, within five months, Suffolk County officials advised the court that they could not comply with the November 30 deadline for ending double ceIling at the Charles Street Jail. The District Court ordered the commissioner to transfer inmates to other institutions, and the commissioner appealed, claiming that the court lacked the power to order him to make the transfers. The First Circuit affirmed the order of the District Court, finding that the commissioner had "major statutory responsibilities" over county jails and that he had failed to appeal the District Court's decision holding that he was a proper party to the lawsuit. Inmates of Suffolk County Jail v. Eisenstadt, 494 F.2d 1196, cert. denied, 419 U. S. 977 (1974).374June 30, 1977), App. 22. The Court of Appeals agreed that immediate action was required:"It is now just short of five years since the district court's opinion was issued. For all of that time the plaintiff class has been confined under the conditions repugnant to the constitution. For all of that time defendants have been aware of that fact."Given the present state of the record and the unconscionable delay that plaintiffs have already endured in securing their constitutional rights, we have no alternative but to affirm the district court's order to prohibit the incarceration of pretrial detainees at the Charles St. Jail." Inmates of Suffolk County Jail v. Kearney, 573 F. 2d 98, 99-100 (CAl1978).The Court of Appeals ordered that the Charles Street Jail be closed on October 2, 1978, unless a plan was presented to create a constitutionally adequate facility for pretrial detainees in Suffolk County.Four days before the deadline, the plan that formed the basis for the consent decree now before this Court was submitted to the District Court. Although plans for the new jail were not complete, the District Court observed that "the critical features of confinement, such as single cells of 80 sq. ft. for inmates, are fixed and safety, security, medical, recreational, kitchen, laundry, educational, religious and visiting provisions, are included. There are unequivocal commitments to conditions of confinement which will meet constitutional standards." Inmates of Suffolk County Jail v. Kearney, Civ. Action No. 71-162-G (Mass., Oct. 2, 1978), App. 51, 55. The court therefore allowed Suffolk County to continue housing its pretrial detainees at the Charles Street Jail.Seven months later, the court entered a formal consent decree in which the government defendants expressed their "desire ... to provide, maintain and operate as applicable a375suitable and constitutional jail for Suffolk County pretrial detainees." Inmates of Suffolk County Jail v. Kearney, Civ. Action No. 71-162-G (Mass., May 7, 1979), App. to Pet. for Cert. in No. 90-954, p. 15a. The decree specifically incorporated the provisions of the Suffolk County Detention Center, Charles Street Facility, Architectural Program, whichin the words of the consent decree-"sets forth a program which is both constitutionally adequate and constitutionally required." Id., at 16a.Under the terms of the architectural program, the new jail was designed to include a total of 309 "[s]ingle occupancy rooms" of 70 square feet, App. 73, 76,3 arranged in modular units that included a kitchenette and recreation area, inmate laundry room, education units, and indoor and outdoor exercise areas. See, e. g., id., at 249. The size of the jail was based on a projected decline in inmate population, from 245 male prisoners in 1979 to 226 at present. Id., at 69.Although the architectural program projected that construction of the new jail would be completed by 1983, ibid., work on the new facility had not been started by 1984. During the intervening years, the inmate population outpaced population projections. Litigation in the state courts ensued, and defendants were ordered to build a larger jail. Attorney General v. Sheriff of Suffolk County, 394 Mass. 624,3 The size of the cells was reduced from the September plan. The architectural program noted that:"The single occupancy rooms have been sized to meet the minimum standards as devised by the following standard setting agencies. The Massachusetts Department of Correction's Code of Human Services Regulations, Chapter IX-Standards for County Correctional Facilities, Standard 972.3 calls for a minimum of 70 square feet for all new cell design. The Manual of Standards for Adult Local Detention Facilities, Standard 5103, as sponsored by the American Correctional Association requires at least 70 sq. ft. of floor space when confinement exceeds 10 hours per day." App. 77-78.See also id., at 63-66 (listing state and national standards consulted in preparation of the architectural program).376477 N. E. 2d 361 (1985). Thereupon, plaintiff prisoners, with the support of the sheriff, moved the District Court to modify the decree to provide a facility with 435 cells. Citing "the unanticipated increase in jail population and the delay in completing the jail," the District Court modified the decree to permit the capacity of the new jail to be increased in any amount, provided that:"(a) single-cell occupancy is maintained under the design for the facility;"(b) under the standards and specifications of the Architectural Program, as modified, the relative proportion of cell space to support services will remain the same as it was in the Architectural Program;"(c) any modifications are incorporated into new architectural plans;"(d) defendants act without delay and take all steps reasonably necessary to carry out the provisions of the Consent Decree according to the authorized schedule." Inmates of Suffolk County Jail v. Kearney, Civ. Action No. 71-162-G (Mass., Apr. 11, 1985), App. 110, 111.The number of cells was later increased to 453. Construction started in 1987.In July 1989, while the new jail was still under construction, the sheriff moved to modify the consent decree to allow the double bunking of male detainees in 197 cells, thereby raising the capacity of the new jail to 610 male detainees. The sheriff argued that changes in law and in fact required the modification. The asserted change in law was this Court's 1979 decision in Bell v. Wolfish, 441 U. S. 520 (1979), handed down one week after the consent decree was approved by the District Court. The asserted change in fact was the increase in the population of pretrial detainees.The District Court refused to grant the requested modification, holding that the sheriff had failed to meet the standard of United States v. Swift & Co., 286 U. S. 106, 119 (1932):377"Nothing less than a clear showing of grievous wrong evoked by new and unforeseen conditions should lead us to change what was decreed after years of litigation with the consent of all concerned."The court rejected the argument that Bell required modification of the decree because the decision "did not directly overrule any legal interpretation on which the 1979 consent decree was based, and in these circumstances it is inappropriate to invoke Rule 60(b)(5) to modify a consent decree." Inmates of Suffolk County Jail v. Kearney, 734 F. Supp. 561, 564 (Mass. 1990). The court refused to order modification because of the increased pretrial detainee population, finding that the problem was "neither new nor unforeseen." Ibid.The District Court briefly stated that, even under the flexible modification standard adopted by other Courts of Appeals,4 the sheriff would not be entitled to relief because "[a] separate cell for each detainee has always been an important element of the relief sought in this litigation-perhaps even the most important element." Id., at 565. Finally, the court rejected the argument that the decree should be modified because the proposal complied with constitutional standards, reasoning that such a rule "would undermine and discourage settlement efforts in institutional cases." Ibid. The District Court never decided whether the sheriff's proposal for double celling at the new jail would be constitutionally permissible.The new Suffolk County Jail opened shortly thereafter. The Court of Appeals affirmed, stating: "[W]e are in agreement with the well-reasoned opinion of the district court and see no reason to elaborate further." Inmates of4 See, e. g., New York State Assn. for Retarded Children, Inc. v. Carey, 706 F.2d 956 (CA2) (Friendly, J.), cert. denied, 464 U. S. 915 (1983); Philadelphia Welfare Rights Organization v. Shapp, 602 F.2d 1114 (CA3 1979), cert. denied, 444 U. S. 1026 (1980); Plyler v. Evatt, 846 F.2d 208 (CA4), cert. denied, 488 U. S. 897 (1988); Heath v. De Courcy, 888 F.2d 1105 (CA6 1989); Newman v. Graddick, 740 F.2d 1513 (CAll 1984).378Suffolk County Jail v. Kearney, No. 90-1440 (CA1, Sept. 20, 1990), judgt. order reported at 915 F.2d 1557, App. to Pet. for Cert. in No. 90-954, p. 2a.5 We granted certiorari. 498 U. S. 1081 (1991).IIIn moving for modification of the decree, the sheriff relied on Federal Rule of Civil Procedure 60(b), which in relevant part provides:"On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: ... (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment .... "There is no suggestion in these cases that a consent decree is not subject to Rule 60(b). A consent decree no doubt embodies an agreement of the parties and thus in some respects is contractual in nature. But it is an agreement that the parties desire and expect will be reflected in, and be enforceable as, a judicial decree that is subject to the rules generally applicable to other judgments and decrees. Railway Employes v. Wright, 364 U. S. 642, 650-651 (1961). The District Court recognized as much but held that Rule 60(b)(5) codified the "grievous wrong" standard of United States v. Swift & Co., supra, that a case for modification under this standard5 Because of the overcrowding at the new Suffolk County Jail, the sheriff refused to transfer female prisoners to the new facility. He did not request modification of the decree. The District Court subsequently ordered the sheriff to house female inmates at the new jail. The sheriff appealed, and the First Circuit affirmed. Inmates of Suffolk County Jail v. Kearney, 928 F.2d 33 (1991). That decision is not before this Court.379had not been made, and that resort to Rule 60(b)(6) was also unavailing. This construction of Rule 60(b) was error.Swift was the product of a prolonged antitrust battle between the Government and the meat-packing industry. In 1920, the defendants agreed to a consent decree that enjoined them from manipulating the meat-packing industry and banned them from engaging in the manufacture, sale, or transportation of other foodstuffs. 286 U. S., at 111. In 1930, several meat-packers petitioned for modification of the decree, arguing that conditions in the meat-packing and grocery industries had changed. Id., at 113. The Court rejected their claim, finding that the meat-packers were positioned to manipulate transportation costs and fix grocery prices in 1930, just as they had been in 1920. Id., at 115-116. It was in this context that Justice Cardozo, for the Court, set forth the much-quoted Swift standard, requiring "[n]othing less than a clear showing of grievous wrong evoked by new and unforeseen conditions" ... as a predicate to modification of the meat-packers' consent decree. Id., at 119.Read out of context, this language suggests a "hardening" of the traditional flexible standard for modification of consent decrees. New York State Assn. for Retarded Children, Inc. v. Carey, 706 F.2d 956, 968 (CA2), cert. denied, 464 U. S. 915 (1983). But that conclusion does not follow when the standard is read in context. See United States v. United Shoe Machinery Corp., 391 U. S. 244, 248 (1968). The Swift opinion pointedly distinguished the facts of that case from one in which genuine changes required modification of a consent decree, stating:"The distinction is between restraints that give protection to rights fully accrued upon facts so nearly permanent as to be substantially impervious to change, and those that involve the supervision of changing conduct or conditions and are thus provisional and tentative .... The consent is to be read as directed toward events as they then were. It was not an abandonment of the380right to exact revision in the future, if revision should become necessary in adaptation to events to be." 286 U. S., at 114-115.Our decisions since Swift reinforce the conclusion that the "grievous wrong" language of Swift was not intended to take on a talismanic quality, warding off virtually all efforts to modify consent decrees. Railway Employes emphasized the need for flexibility in administering consent decrees, stating: "There is ... no dispute but that a sound judicial discretion may call for the modification of the terms of an injunctive decree if the circumstances, whether of law or fact, obtaining at the time of its issuance have changed, or new ones have since arisen." 364 U. S., at 647.The same theme was repeated in our decision last Term in Board of Ed. of Oklahoma City Public Schools v. Dowell, 498 U. S. 237, 246-248 (1991), in which we rejected the rigid use of the Swift "grievous wrong" language as a barrier to a motion to dissolve a desegregation decree.There is thus little basis for concluding that Rule 60(b) misread the Swift opinion and intended that modifications of consent decrees in all cases were to be governed by the standard actually applied in Swift. That Rule, in providing that, on such terms as are just, a party may be relieved from a final judgment or decree where it is no longer equitable that the judgment have prospective application, permits a less stringent, more flexible standard.The upsurge in institutional reform litigation since Brown v. Board of Education, 347 U. S. 483 (1954), has made the ability of a district court to modify a decree in response to changed circumstances all the more important. Because such decrees often remain in place for extended periods of time, the likelihood of significant changes occurring during the life of the decree is increased. See, e. g., Philadelphia Welfare Rights Organization v. Shapp, 602 F.2d 1114, 11191121 (CA3 1979), cert. denied, 444 U. S. 1026 (1980), in which modification of a consent decree was allowed in light of381changes in circumstances that were beyond the defendants' control and were not contemplated by the court or the parties when the decree was entered.The experience of the District Courts and Courts of Appeals in implementing and modifying such decrees has demonstrated that a flexible approach is often essential to achieving the goals of reform litigation. See, e. g., New York State Assn. for Retarded Children, Inc. v. Carey, supra.6 The Courts of Appeals have also observed that the public interest is a particularly significant reason for applying a flexible modification standard in institutional reform litigation because such decrees "reach beyond the parties involved directly in the suit and impact on the public's right to the sound and efficient operation of its institutions." Heath v. De Courcy, 888 F.2d 1105, 1109 (CA6 1989). Accord, New York State Assn. for Retarded Children, Inc. v. Carey, supra, at 969.6 In Carey, the state defendants sought modification of a consent decree designed to empty a state school for the mentally retarded that had housed over 6,000 people in squalid conditions. The consent judgment contemplated transfer of residents to community placements of 15 or fewer beds. 706 F. 2d, at 959. Defendants urged that revising the decree to allow placement of some residents in larger community residences would both expedite their transfer from the state school and allow for a higher quality of care. Judge Friendly, writing for the Second Circuit, allowed the modification:"Here, as in Swift, the modification is proposed by the defendants. But it is not, as in Swift, in derogation of the primary objective of the decree, namely, to empty such a mammoth institution ... ; indeed defendants offered substantial evidence that, again in contrast to Swift, the modification was essential to attaining that goal at any reasonably early date. To be sure, the change does run counter to another objective of the decree, namely, to place the occupants ... in small facilities bearing some resemblance to a normal home, but any modification will perforce alter some aspect of the decree." Id., at 969.In so ruling, the court recognized that "[t]he power of a court of equity to modify a decree of injunctive relief is long-established, broad, and flexible." Id., at 967.382Petitioner Rufo urges that these factors are present in the cases before us and support modification of the decree. He asserts that modification would actually improve conditions for some pretrial detainees, who now cannot be housed in the Suffolk County Jail and therefore are transferred to other facilities, farther from family members and legal counsel. In these transfer facilities, petitioners assert that detainees may be double celled under less desirable conditions than those that would exist if double celling were allowed at the new Suffolk County Jail. Petitioner Rufo also contends that the public interest is implicated here because crowding at the new facility has necessitated the release of some pretrial detainees and the transfer of others to halfway houses, from which many escape.For the District Court, these points were insufficient reason to modify under Rule 60(b)(5) because its "authority [was] limited by the established legal requirements for modification .... " 734 F. Supp., at 566. The District Court, as noted above, also held that the suggested modification would not be proper even under the more flexible standard that is followed in some other Circuits. None of the changed circumstances warranted modification because it would violate one of the primary purposes of the decree, which was to provide for "[a] separate cell for each detainee [which] has always been an important element of the relief sought in this litigation-perhaps even the most important element." Id., at 565. For reasons appearing later in this opinion, this was not an adequate basis for denying the requested modification. The District Court also held that Rule 60(b)(6) provided no more basis for relief. The District Court, and the Court of Appeals as well, failed to recognize that such rigidity is neither required by Swift nor appropriate in the context of institutional reform litigation.It is urged that any rule other than the Swift "grievous wrong" standard would deter parties to litigation such as this from negotiating settlements and hence destroy the util-383ity of consent decrees. Obviously that would not be the case insofar as the state or local government officials are concerned. As for the plaintiffs in such cases, they know that if they litigate to conclusion and win, the resulting judgment or decree will give them what is constitutionally adequate at that time but perhaps less than they hoped for. They also know that the prospective effect of such a judgment or decree will be open to modification where deemed equitable under Rule 60(b). Whether or not they bargain for more than what they might get after trial, they will be in no worse position if they settle and have the consent decree entered. At least they will avoid further litigation and perhaps will negotiate a decree providing more than what would have been ordered without the local government's consent. And, of course, if they litigate, they may lose.IIIAlthough we hold that a district court should exercise flexibility in considering requests for modification of an institutional reform consent decree, it does not follow that a modification will be warranted in all circumstances. Rule 60(b)(5) provides that a party may obtain relief from a court order when "it is no longer equitable that the judgment should have prospective application," not when it is no longer convenient to live with the terms of a consent decree. Accordingly, a party seeking modification of a consent decree bears the burden of establishing that a significant change in circumstances warrants revision of the decree. If the moving party meets this standard, the court should consider whether the proposed modification is suitably tailored to the changed circumstance.77 The standard we set forth applies when a party seeks modification of a term of a consent decree that arguably relates to the vindication of a constitutional right. Such a showing is not necessary to implement minor changes in extraneous details that may have been included in a decree (e. g., paint color or design of a building's facade) but are unrelated to384AA party seeking modification of a consent decree may meet its initial burden by showing a significant change either in factual conditions or in law.1Modification of a consent decree may be warranted when changed factual conditions make compliance with the decree substantially more onerous. Such a modification was approved by the District Court in this litigation in 1985 when it became apparent that plans for the new jail did not provide sufficient cell space. Inmates of Suffolk County Jail v. Kearney, Civ. Action No. 71-162-G (Mass., Apr. 11, 1985), App. 110.8 Modification is also appropriate when a decree proves to be unworkable because of unforeseen obstacles, New York State Assn. for Retarded Children, Inc. v. Carey, 706 F. 2d, at 969 (modification allowed where State could not find appropriate housing facilities for transfer patients); Philadelphia Welfare Rights Organization v. Shapp, 602 F. 2d, at 1120-1121 (modification allowed where State could not find sufficient clients to meet decree targets); or when enforcement of the decree without modification would be detrimental to the public interest, Duran v. Elrod, 760 F.2d 756,remedying the underlying constitutional violation. Ordinarily, the parties should consent to modifying a decree to allow such changes. If a party refuses to consent and the moving party has a reasonable basis for its request, the court should modify the decree. In these cases the entire architectural program became part of the decree binding on the local authorities. Hence, any change in the program technically required a change in the decree, absent a provision in the program exempting certain changes. Such a provision was furnished by the 1985 modification of the decree. Of course, the necessity of changing a decree to allow insignificant changes could be avoided by not entering an overly detailed decree.S This modification was entered over the opposition of the Boston city councilors, who were parties to the litigation in the District Court.385759-761 (CA7 1985) (modification allowed to avoid pretrial release of accused violent felons).Respondents urge that modification should be allowed only when a change in facts is both "unforeseen and unforeseeable." Brief for Respondents 35. Such a standard would provide even less flexibility than the exacting Swift test; we decline to adopt it. Litigants are not required to anticipate every exigency that could conceivably arise during the life of a consent decree.Ordinarily, however, modification should not be granted where a party relies upon events that actually were anticipated at the time it entered into a decree. See Twelve John Does v. District of Columbia, 274 U. S. App. D. C. 62, 65-66, 861 F.2d 295, 298-299 (1988); Ruiz v. Lynaugh, 811 F.2d 856, 862-863 (CA5 1987). If it is clear that a party anticipated changing conditions that would make performance of the decree more onerous but nevertheless agreed to the decree, that party would have to satisfy a heavy burden to convince a court that it agreed to the decree in good faith, made a reasonable effort to comply with the decree, and should be relieved of the undertaking under Rule 60(b).Accordingly, on remand the District Court should consider whether the upsurge in the Suffolk County inmate population was foreseen by petitioners. The District Court touched on this issue in April 1990, when, in the course of denying the modification requested in this litigation, the court stated that "the overcrowding problem faced by the Sheriff is neither new nor unforeseen. It has been an ongoing problem during the course of this litigation, before and after entry of the consent decree." 734 F. Supp., at 564. However, the architectural program incorporated in the decree in 1979 specifically set forth projections that the jail386population would decrease in subsequent years.9 Significantly, when the District Court modified the consent decree in 1985, the court found that the "modifications are necessary to meet the unanticipated increase in jail population and the delay in completing the jail." Inmates of Suffolk County Jail v. Kearney, Civ. Action No. 71-162-G (Mass., Apr. 11, 1985), App. 110 (emphasis added). Petitioners assert that it was only in July 1988, 10 months after construction began, that the number of pretrial detainees exceeded 400 and began to approach the number of cells in the new jail. Brief for Petitioner Rufo in No. 90-954, p. 9.It strikes us as somewhat strange, if a rapidly increasing jail population had been contemplated, that respondents would have settled for a new jail that would not have been adequate to house pretrial detainees.1o There is no doubt9 The architectural program included the following projections:YearPopulation Projections1979245198024319812411982239198323819842361985-19892321990-19942261995-1999216App.69.10 Respondents and the District Court have been provided with daily prison population data during this litigation. See Tr. 82 (Mar. 30, 1990). The fact that none of the parties showed alarm over fluctuations in these data undermines the dissent's argument that the ongoing population increase was "reasonably foreseeable." See post, at 406.We note that the dissent's "reasonably foreseeable" standard differs significantly from that adopted by the Court today. By invoking this standard and focusing exclusively on developments following modification of the decree in 1985, see post, at 405, the dissent jumps to the conclusion that petitioners assumed full responsibility for responding to any increase in detainee numbers by increasing the capacity of the jail, potentially infinitely. But we do not think that, in the absence of a clear agreement and387that the decree, as originally issued and modified, called for a facility with single cells. Inmates of Suffolk County Jail v. Kearney, Civ. Action No. 71-162-G (Mass., Apr. 11, 1985), App. 110.11 It is apparent, however, that the decree itself nowhere expressly orders or reflects an agreement by petitioners to provide jail facilities having single cells sufficient to accommodate all future pretrial detainees, however large the number of such detainees might be. Petitioners' agreement and the decree appear to have bound them only to provide the specified number of single cells. If petitioners were to build a second new facility providing double cells that would meet constitutional standards, it is doubtful that they would have violated the consent decree.Even if the decree is construed as an undertaking by petitioners to provide single cells for pretrial detainees, to relieve petitioners from that promise based on changed conditions does not necessarily violate the basic purpose of the decree. That purpose was to provide a remedy for what had been found, based on a variety of factors, including double celling, to be unconstitutional conditions obtaining in the Charles Street Jail. If modification of one term of a consent decree defeats the purpose of the decree, obviously modification would be all but impossible. That cannot be the rule. The District Court was thus in error in holding that even under a more flexible standard than its version of Swift required, modification of the single cell requirement was necessarily forbidden.a fully developed record, this Court should impose that burden on a local government by assuming that a change in circumstances was "reasonably foreseeable" and that anticipating and responding to such a change was the sole responsibility of petitioners.11 One of the conditions of the modification ordered in 1985 was that "single-cell occupancy is maintained under the design for the facility." App.111.388This was the case in Railway Employes v. Wright, 364 U. S. 642 (1961). A railroad and its unions were sued for violating the Railway Labor Act, 45 U. S. C. § 151 et seq., which banned discrimination against nonunion employees, and the parties entered a consent decree that prohibited such discrimination. Later, the Railway Labor Act was amended to allow union shops, and the union sought a modification of the decree. Although the amendment did not require, but purposely permitted, union shops, this Court held that the union was entitled to the modification because the parties had recognized correctly that what the consent decree prohibited was illegal under the Railway Labor Act as it then read and because a "court must be free to continue to further the objectives of thee] Act when its provisions are amended." Railway Employes, supra, at 651. See also Firefighters v. Stotts, 467 U. S. 561, 576, and n. 9, 583, n. 17 (1984).Petitioner Rapone urges that, without more, our 1979 decision in Bell v. Wolfish, 441 U. S. 520, was a change in law requiring modification of the decree governing construction of the Suffolk County Jail. We disagree. Bell made clear what the Court had not before announced: that double celling is not in all cases unconstitutional. But it surely did not cast doubt on the legality of single celling, and petitioners were undoubtedly aware that Bell was pending when they signed the decree. Thus, the case must be judged on the basis that it was immaterial to petitioners that double celling might be ruled constitutional, i. e., they preferred even in that event to agree to a decree which called for providing only single cells in the jail to be built.389Neither Bell nor the Federal Constitution forbade this course of conduct. Federal courts may not order States or local governments, over their objection, to undertake a course of conduct not tailored to curing a constitutional violation that has been adjudicated. See Milliken v. Bradley (Milliken II), 433 U. S. 267, 281 (1977). But we have no doubt that, to "save themselves the time, expense, and inevitable risk of litigation," United States v. Armour & Co., 402 U. S. 673, 681 (1971), petitioners could settle the dispute over the proper remedy for the constitutional violations that had been found by undertaking to do more than the Constitution itself requires (almost any affirmative decree beyond a directive to obey the Constitution necessarily does that), but also more than what a court would have ordered absent the settlement. Accordingly, the District Court did not abuse its discretion in entering the agreed-upon decree, which clearly was related to the conditions found to offend the Constitution. Milliken v. Bradley (Milliken I), 418 U. S. 717, 738 (1974). See also Dowell, 498 U. S., at 246-248. Cf. Firefighters v. Cleveland, 478 U. S. 501, 525 (1986).12To hold that a clarification in the law automatically opens the door for relitigation of the merits of every affected consent decree would undermine the finality of such agreements and could serve as a disincentive to negotiation of settlements in institutional reform litigation. The position urged by petitioners12 Petitioner Rapone contends that the District Court was required to modify the consent decree because "the constitutional violation underlying the decree has disappeared and will not recur" and that "no constitutional violation [is] even alleged" at the new jail, "so there is no constitutional violation to serve as a predicate for the federal court's continued exercise of its equitable power." Brief for Petitioner in No. 90-1004, pp. 36-37. His argument is not well taken. The District Court did not make findings on these issues, and even if it had ruled that double celling at the new jail is constitutional and that the modification should be granted, we do not have before us the question whether the entire decree should be vacated.390"would necessarily imply that the only legally enforceable obligation assumed by the state under the consent decree was that of ultimately achieving minimal constitutional prison standards .... Substantively, this would do violence to the obvious intention of the parties that the decretal obligations assumed by the state were not confined to meeting minimal constitutional requirements. Procedurally, it would make necessary, as this case illustrates, a constitutional decision every time an effort was made either to enforce or modify the decree by judicial action." Plyler v. Evatt, 924 F.2d 1321, 1327 (CA41991).While a decision that clarifies the law will not, in and of itself, provide a basis for modifying a decree, it could constitute a change in circumstances that would support modification if the parties had based their agreement on a misunderstanding of the governing law. For instance, in Pasadena City Bd. of Ed. v. Spangler, 427 U. S. 424, 437-438 (1976), we held that a modification should have been ordered when the parties had interpreted an ambiguous equitable decree in a manner contrary to the District Court's ultimate interpretation and the District Court's interpretation was contrary to intervening decisional law. And in Nelson v. Collins, 659 F. 2d 420, 428-429 (1981) (en bane), the Fourth Circuit vacated an equitable order that was based on the assumption that double bunking of prisoners was per se unconstitutional.Thus, if the sheriff and commissioner could establish on remand that the parties to the consent decree believed that single celling of pretrial detainees was mandated by the Constitution, this misunderstanding of the law could form a basis for modification. In this connection, we note again, see supra, at 375, that the decree itself recited that it "sets forth a program which is both constitutionally adequate and constitutionally required." (Emphasis added.)391BOnce a moving party has met its burden of establishing either a change in fact or in law warranting modification of a consent decree, the district court should determine whether the proposed modification is suitably tailored to the changed circumstance. In evaluating a proposed modification, three matters should be clear.Of course, a modification must not create or perpetuate a constitutional violation. Petitioners contend that double celling inmates at the Suffolk County Jail would be constitutional under Bell. Respondents counter that Bell is factually distinguishable and that double celling at the new jail would violate the constitutional rights of pretrial detainees.13 If this is the case-the District Court did not decide this issue, 734 F. Supp., at 565-566-modification should not be granted.A proposed modification should not strive to rewrite a consent decree so that it conforms to the constitutional floor. Once a court has determined that changed circumstances warrant a modification in a consent decree, the focus should be on whether the proposed modification is tailored to resolve the problems created by the change in circumstances. A court should do no more, for a consent decree is a final judgment that may be reopened only to the extent that equity requires. The court should not "turn aside to inquire whether some of [the provisions of the decree] upon separate as distinguished from joint action could have been opposed13 In the District Court, respondents introduced the report of an architectural consultant who claimed that the proposed modification would violate the standards of the American Correctional Association and the Massachusetts Division of Capital Planning and Operations by leaving detainees with inadequate cell, dayroom, and outdoor exercise space. See App.146-179. See Bell, 441 U. S., at 544, n. 27 ("[W]hile the recommendations of these various groups may be instructive in certain cases, they simply do not establish the constitutional minima").392with success if the defendants had offered opposition." Swift, 286 U. S., at 116-117.Within these constraints, the public interest and "[c]onsiderations based on the allocation of powers within our federal system," Dowell, supra, at 248, require that the district court defer to local government administrators, who have the "primary responsibility for elucidating, assessing, and solving" the problems of institutional reform, to resolve the intricacies of implementing a decree modification. Brown v. Board of Education, 349 U. S. 294, 299 (1955). See also Missouri v. Jenkins, 495 U. S. 33, 50-52 (1990); Milliken II, 433 U. S., at 281.14 Although state and local officers in charge of institutional litigation may agree to do more than that which is minimally required by the Constitution to settle a case and avoid further litigation, a court should surely keep the public interest in mind in ruling on a request to modify based on a change in conditions making it substantially more onerous to abide by the decree. To refuse modification of a decree is to bind all future officers of the State, regardless of their view of the necessity of relief from one or more provisions of a decree that might not have been entered had the matter been litigated to its conclusion. The District Court seemed to be of the view that the problems of the fiscal officers of the State were only marginally relevant to the request for modification in this case. 734 F. Supp., at 566. Financial constraints may not be used to justify the creation or perpetuation of constitutional violations, but they are a legitimate concern of government defendants in institu-14 The concurrence mischaracterizes the nature of the deference that we would accord local government administrators. As we have stated, see supra, at 383, the moving party bears the burden of establishing that a significant change in circumstances warrants modification of a consent decree. No deference is involved in this threshold inquiry. However, once a court has determined that a modification is warranted, we think that principles of federalism and simple common sense require the court to give significant weight to the views of the local government officials who must implement any modification.393tional reform litigation and therefore are appropriately considered in tailoring a consent decree modification.IVTo conclude, we hold that the Swift "grievous wrong" standard does not apply to requests to modify consent decrees stemming from institutional reform litigation. Under the flexible standard we adopt today, a party seeking modification of a consent decree must establish that a significant change in facts or law warrants revision of the decree and that the proposed modification is suitably tailored to the changed circumstance. We vacate the decision below and remand the cases for further proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 1991SyllabusRUFO, SHERIFF OF SUFFOLK COUNTY, ET AL. v.INMATES OF SUFFOLK COUNTY JAIL ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUITNo. 90-954. Argued October 9, 1991-Decided January 15, 1992*Years after the District Court held that conditions at the Suffolk County, Massachusetts, jail were constitutionally deficient, petitioner officials and respondent inmates entered into a consent decree providing for construction of a new jail that, among other things, would provide single occupancy cells for pretrial detainees. Work on the jail was delayed and, in the interim, the inmate population outpaced projections. While construction was still underway, petitioner sheriff moved to modify the decree to allow double bunking in a certain number of cells, thereby raising the jail's capacity. Relying on Federal Rule of Civil Procedure 60(b)-which provides, inter alia, that "upon such terms as are just, the court may relieve a party ... from a ... judgment ... for the following reasons: ... (5) ... it is no longer equitable that the judgment should have prospective operation"-the sheriff argued that modification was required by a change in law, this Court's postdecree decision in Bell v. Wolfish, 441 U. S. 520, and a change in fact, the increase in pretrial detainees. The District Court denied relief, holding that Rule 60(b)(5) codified the standard of United States v. Swift & Co., 286 U. S. 106, 119-"Nothing less than a clear showing of grievous wrong evoked by new and unforeseen conditions should lead ... to [a] change [in] what was decreed after years of litigation with the consent of all concerned"and that a case for modification under this standard had not been made. The court also rejected the argument that Bell required modification of the decree; found that the increased pretrial detainee population was "neither new nor unforeseen"; declared that relief would be inappropriate even under a more flexible modification standard because separate cells for detainees were "perhaps the most important" element of the relief sought; and held that, even if the sheriff's double celling proposal met constitutional standards, allowing modification on that basis would undermine and discourage settlement of institutional cases. The Court of Appeals affirmed.*Together with No. 90-1004, Rapone, Commissioner of Correction of Massachusetts v. Inmates of Suffolk County Jail et al., also on certiorari to the same court.368Held:1. The Swift "grievous wrong" standard does not apply to requests to modify consent decrees stemming from institutional reform litigation. That standard was formulated in the context of facts demonstrating that no genuine changes had occurred requiring modification of the decree in question, see id., at 115-116, and the Swift Court recognized that decrees involving the supervision of changing conduct or conditions may be revised if necessary to adapt to future events, id., at 114-115. Moreover, subsequent decisions have emphasized the need for flexibility to modify a decree if the circumstances, whether of law or fact, have changed or new ones have arisen. Thus, it cannot be concluded that Rule 60(b)(5) misread Swift and intended that decree modifications were in all cases to be governed by the "grievous wrong" standard. A less stringent standard is made all the more important by the recent upsurge in institutional reform litigation, where the extended life of decrees increases the likelihood that significant changes will occur. Furthermore, the experience of federal courts in implementing and modifying such decrees demonstrates that a flexible approach is often essential to achieving the goals of reform litigation, particularly the public's interest in the sound and efficient operations of its institutions. The contention that any rule other than the Swift standard would deter parties to such litigation from negotiating settlements and hence destroy the utility of consent decrees is unpersuasive. Obviously that would not be the case with respect to government officials. Moreover, plaintiffs will still wish to settle such cases, since, even if they litigate to conclusion and win, the resulting judgment may give them less than they hoped for, whereas settlement will avoid further litigation, will perhaps obtain more than would have been ordered without the local government's consent, and will eliminate the possibility of losing; and since the prospective effect of a judgment obtained after litigation will still be open to modification where deemed equitable under Rule 60(b). pp. 378-383.2. Under the flexible standard adopted today, a party seeking modification of an institutional reform consent decree bears the burden of establishing that a significant change in facts or law warrants revision of the decree and that the proposed modification is suitably tailored to the changed circumstances. Pp. 383-393.(a) Modification may be warranted when changed factual conditions make compliance with the decree substantially more onerous, when the decree proves to be unworkable because of unforeseen obstacles, or when enforcement of the decree without modification would be detrimental to the public interest. Where a party relies upon events that actually were anticipated at the time it entered into a decree, modifica-369Full Text of Opinion

1991_90-1745

IIn the summer and early fall of 1988, respondent Richard Wilson committed several crimes in Putnam County, Tennessee. The precise details of these crimes do not concern us here. It suffices to state that Tennessee authorities arrested Wilson on October 5, 1988, and held him in jail pending the outcome of federal and state prosecutions. After certain preliminary proceedings, Wilson eventually pleaded guilty to various federal and state criminal charges.On November 29, 1989, the United States District Court for the Middle District of Tennessee sentenced Wilson to 96 months' imprisonment for violation of the Hobbs Act, 18 U. S. C. § 1951. The District Court denied Wilson's request for credit for time served during his presentence state custody. On December 12, 1989, a Tennessee trial court sentenced Wilson to several years' imprisonment for robbery and two other felonies. In contrast to the District Court, the state court granted Wilson 429 days of credit toward his state sentence. Later that day, Tennessee authorities transferred Wilson to federal custody, and he began serving his federal sentence.Wilson appealed the District Court's refusal to give him credit for the time that he had spent in state custody. Reversing the District Court, the United States Court of Appeals for the Sixth Circuit held that Wilson had a right to credit and that the District Court should have awarded it to him. 916 F.2d 1115 (1990). We granted certiorari, 502 U. S. 807 (1991), and now reverse.IIThe Attorney General, through the Bureau of Prisons (BOP), has responsibility for imprisoning federal offenders. See 18 U. S. C. § 3621(a). From 1966 until 1987, a provision codified at 18 U. S. C. § 3568 (1982 ed.) required the Attorney General to award federal prisoners credit for certain time332spent in jail prior to the commencement of their sentences. This provision, in part, stated:"The Attorney General shall give any such person credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed." Pub. L. 89-465, § 4, 80 Stat. 217 (emphasis added).The Attorney General implemented this provision by computing the amount of credit after taking custody of the sentenced federal offender. Although the federal courts could review the Attorney General's determination, the sentencing court did not participate in computation of the credit. See, e. g., United States v. Morgan, 425 F.2d 1388, 1389-1390 (CA51970).In the Sentencing Reform Act of 1984, 18 U. S. C. § 3551 et seq., which became effective in 1987, Congress rewrote § 3568 and recodified it at § 3585(b). Unlike its predecessor, § 3585(b) does not mention the Attorney General. Written in the passive voice, it states:"A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences-"(1) as a result of the offense for which the sentence was imposed; or"(2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed;"that has not been credited against another sentence." 18 U. S. C. § 3585(b) (emphasis added).In describing the defendant's right to receive jail-time credit in this manner, the provision has created doubt about whether district courts now may award credit when imposing a sentence. The question has significance in this case333because the final clause of § 3585(b) allows a defendant to receive credit only for detention time "that has not been credited against another sentence." When the District Court imposed Wilson's 96-month sentence on November 29, 1989, Wilson had not yet received credit for his detention time from the Tennessee courts. However, by the time the Attorney General imprisoned Wilson on December 12, 1989, the Tennessee trial court had awarded Wilson 429 days of credit. As a result, Wilson could receive a larger credit if the statute permitted crediting at sentencing, and thus before the detention time had been credited against another sentence.The United States argues that it is the Attorney General who computes the amount of the credit after the defendant begins his sentence and that the Court of Appeals erred in ordering the District Court to award credit to Wilson. Wilson counters that § 3585(b) authorizes the District Court to compute the amount of the credit at sentencing. We agree with the United States.AWe do not accept Wilson's argument that § 3585(b) authorizes a district court to award credit at sentencing. Section 3585(b) indicates that a defendant may receive credit against a sentence that "was imposed." It also specifies that the amount of the credit depends on the time that the defendant "has spent" in official detention "prior to the date the sentence commences." Congress' use of a verb tense is significant in construing statutes. See, e. g., OUe v. United States, 419 U. S. 43, 49-50 (1974); Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U. S. 49, 63-64, n. 4 (1987). By using these verbs in the past and present perfect tenses, Congress has indicated that computation of the credit must occur after the defendant begins his sentence. A district court, therefore, cannot apply § 3585(b) at sentencing.Federal defendants do not always begin to serve their sentences immediately. In this case, the District Court sen-334tenced Wilson on November 29, 1989, but Wilson did not begin his sentence until December 12, 1989. At sentencing, the District Court only could have speculated about the amount of time that Wilson would spend in detention prior to the commencement of his sentence; the court did not know when the state-court proceedings would end or when the federal authorities would take Wilson into custody. Because § 3585(b) bases the credit on how much time a defendant "has spent" (not "will have spent") prior to beginning his sentence, the District Court could not compute the amount of the credit at sentencing.The final phrase of § 3585(b) confirms this interpretation.As noted above, it authorizes credit only for time that "has not been credited against another sentence." Wilson argues that this phrase does not prevent him from receiving credit because his official detention "ha[d] not been credited" against the state sentence when the District Court imposed the federal sentence. Under this logic, however, if the District Court had sentenced Wilson a few weeks later than it did, he would not have received credit under § 3585(b). This interpretation of the statute would make the award of credit arbitrary, a result not to be presumed lightly. See United States v. Turkette, 452 U. S. 576, 580 (1981) (absurd results are to be avoided). We can imagine no reason why Congress would desire the presentence detention credit, which determines how much time an offender spends in prison, to depend on the timing of his sentencing. For these reasons, we conclude that § 3585(b) does not authorize a district court to compute the credit at sentencing.BWe agree with the United States that the Attorney General must continue to compute the credit under § 3585(b) as he did under the former § 3568. When Congress writes a statute in the passive voice, it often fails to indicate who must take a required action. This silence can make the335meaning of a statute somewhat difficult to ascertain. See, e. g., E. 1. du Pont de Nemours & Co. v. Train, 430 U. S. 112, 128 (1977); Gladstone, Realtors v. Village of Bellwood, 441 U. S. 91, 102-103 (1979). Yet, even though §3585(b) no longer mentions the Attorney General, we do not see how he can avoid determining the amount of a defendant's jailtime credit.After a district court sentences a federal offender, the Attorney General, through BOP, has the responsibility for administering the sentence. See 18 U. S. C. § 3621(a) ("A person who has been sentenced to a term of imprisonment ... shall be committed to the custody of the Bureau of Prisons until the expiration of the term imposed"). To fulfill this duty, BOP must know how much of the sentence the offender has left to serve. Because the offender has a right to certain jail-time credit under § 3585(b), and because the district court cannot determine the amount of the credit at sentencing, the Attorney General has no choice but to make the determination as an administrative matter when imprisoning the defendant.Crediting jail time against federal sentences long has operated in this manner. After Congress enacted § 3568 in 1966, BOP developed detailed procedures and guidelines for determining the credit available to prisoners. See Federal Prison System Program Statement No. 5880.24 (Sept. 5, 1979) and Federal Bureau of Prisons Operations Memorandum No. EMS DM 154-89 (Oct. 23, 1989), Apps. Band C to Brief for United States (stating BOP's procedures for computing jailtime credit determinations); see also United States v. Lucas, 898 F.2d 1554 (CAll 1990). Federal regulations have afforded prisoners administrative review of the computation of their credits, see 28 CFR §§ 542.10-542.16 (1990); Lucas, supra, at 1556, and prisoners have been able to seek judicial review of these computations after exhausting their administrative remedies, see United States v. Bayless, 940 F.2d 300, 304-305 (CA8 1991); United States v. Flanagan, 868 F. 2d3361544, 1546 (CAll 1989); United States v. Martinez, 837 F.2d 861, 865-866 (CA9 1988). Congress' conversion of an active sentence in § 3568 into a passive sentence in § 3585(b) strikes us as a rather slim ground for presuming an intention to change these well-established procedures. "It is not lightly to be assumed that Congress intended to depart from a long established policy." Robertson v. Railroad Labor Bd., 268 U. S. 619, 627 (1925).CWilson argues that our conclusion conflicts with the familiar maxim that, when Congress alters the words of a statute, it must intend to change the statute's meaning. See Russello v. United States, 464 U. S. 16, 23-24 (1983). He asserts that, by removing the explicit reference to the Attorney General when it enacted § 3585(b), Congress expressed a desire to remove the Attorney General from the process of computing sentences. Otherwise, Wilson contends, Congress would have had no reason to modify the provision as it did. We have no difficulty with the general presumption that Congress contemplates a change whenever it amends a statute. In this case, however, we find that presumption overcome by our conclusions that the District Court cannot perform the necessary calculation at the time of sentencing and that the Attorney General, in implementing the defendant's sentence, cannot avoid computing the credit.We candidly acknowledge that we do not know what happened to the reference to the Attorney General during the revision. We do know that Congress entirely rewrote § 3568 when it changed it to its present form in § 3585(b). It rearranged its clauses, rephrased its central idea in the passive voice, and more than doubled its length. In view of these changes, and because any other interpretation would require us to stretch the meaning of the words that § 3585(b) now includes, we think it likely that the former reference to the Attorney General was simply lost in the shuffle.337Our interpretation of § 3585(b), however, does not render the 1987 revision meaningless. Congress altered § 3568 in at least three ways when it enacted § 3585(b). First, Congress replaced the term "custody" with the term "official detention." Second, Congress made clear that a defendant could not receive a double credit for his detention time. Third, Congress enlarged the class of defendants eligible to receive credit. Under the old law, a defendant could receive credit only for time spent in custody in connection with "the offense ... for which sentence was imposed." Under the new law, a defendant may receive credit both for this time and for time spent in official detention in connection with "any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed." In light of these revisions, and for the foregoing reasons, we conclude that the Attorney General may continue to compute the amount of the credit. The judgment of the Court of Appeals isReversed

OCTOBER TERM, 1991SyllabusUNITED STATES v. WILSONCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUITNo. 90-1745. Argued January 15, 1992-Decided March 24,1992In sentencing respondent Wilson to prison for violating the Hobbs Act, the District Court denied his request for credit under 18 U. S. C. § 3585(b) for the time he had spent in presentence detention by Tennessee authorities. After a state trial court credited such time against his prison term for state-law convictions, the Court of Appeals reversed the District Court's ruling, holding that he had a right to federal credit and that the District Court should have awarded it to him.Held: It is the Attorney General who computes the amount of the § 3585(b) credit after the defendant has begun to serve his sentence. Pp. 331-337.(a) Effective in 1987, § 3585(b)-which specifies, inter alia, that "[a] defendant shall be given credit toward [his] term of imprisonment for any time he has spent in official detention prior to the date the sentence commences," if such time "has not been credited against another sentence" (emphasis added)-replaced a statute which had provided, among other things, that "[t]he Attorney General shall give any such person credit" (emphasis added). Under the predecessor statute, the Attorney General, through the Bureau of Prisons (BOP), computed the amount of credit after taking custody of the sentenced federal offender. pp. 331-333.(b) Section 3585(b) does not authorize a district court to compute the credit at sentencing. By stating crucial verbs in the past and present perfect tenses, the section indicates that the computation must occur after the defendant begins his sentence. A sentencing court, therefore, cannot apply the section. Indeed, the District Court here could not have made the necessary computation at sentencing, since the credit is based on how much time a defendant "has spent" (not "will have spent") prior to beginning his sentence. The court did not then know when the state-court proceedings would end or when the federal authorities would take Wilson into custody, and only could have speculated about the amount of time that he would spend in detention. Moreover, it is immaterial that such detention "ha[d] not been credited" against a state sentence at the time of Wilson's federal sentencing, since basing the award of credit on the relative timing of sentencing proceedings would result in arbitrary awards. Pp. 333-334.330(c) In light of the sentencing court's inability to compute the credit, the Attorney General must continue to make the calculation as he did in the past, even though § 3585(b) no longer mentions him. The offender has a right to certain jail-time credit under the section, and BOP must know how much of a sentence remains in order to fulfill its statutory duty of administering the sentence. Congress' conversion of the former statute's active language into the passive voice in § 3585(b) is a slim ground for presuming an intention to change well-established procedures for determining the credit. Pp. 334-336.(d) The general presumption that Congress contemplates a change whenever it amends a statute is overcome in this case by the foregoing analysis. Because the statute was entirely rewritten, and because any other interpretation would require this Court to stretch § 3585(b)'s language, it is likely that the former reference to the Attorney General was simply lost in the shuffle. This interpretation does not render the 1987 revision meaningless, since Congress altered the predecessor statute in at least three other ways. Pp.336-337.916 F.2d 1115, reversed.THOMAS, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and BLACKMUN, O'CONNOR, SCALIA, KENNEDY, and SOUTER, JJ., joined. STEVENS, J., filed a dissenting opinion, in which WHITE, J., joined, post, p. 337.Amy L. Wax argued the cause for the United States.With her on the briefs were Solicitor General Starr, Assistant Attorney General Mueller, Deputy Solicitor General Bryson, and Joel M. Gershowitz.Henry A. Martin, by appointment of the Court, 502 U. S. 936, argued the cause for respondent. With him on the brief were Deborah S. Swettenam and Alan Morrison.JUSTICE THOMAS delivered the opinion of the Court.A defendant convicted of a federal crime has a right under 18 U. S. C. § 3585(b) to receive credit for certain time spent in official detention before his sentence begins. In this case, we must decide whether the District Court calculates the credit at the time of sentencing or whether the Attorney General computes it after the defendant has begun to serve his sentence.331Full Text of Opinion

1962_430

MR. JUSTICE BRENNAN delivered the opinion of the Court.A schedule of reduced rates proposed by the respondent rail carriers was suspended by the Interstate Commerce Commission for the maximum statutory period of seven months pending a determination whether the reduction was lawful. The statute [Footnote 1] expressly provides that "the Page 372 U. S. 660 proposed change of rate . . . shall go into effect," if the Commission's proceeding has not been concluded and an order made within the period of suspension. The Commission did not reach a decision within seven months, or within the following five months during which the respondents voluntarily postponed the change, and the respondents announced that the reduced rates would be put in effect. Thereupon the petitioners [Footnote 2] brought this Page 372 U. S. 661 action in the District Court for the Northern District of Alabama to enjoin the respondents from making the change effective pending the Commission's decision. The District Court concluded after examination of the pleadings and a brief hearing that"there is grave danger that irreparable injury, loss or damage may be inflicted on . . . [petitioners] if the proposed rates go into effect . . . for which . . . [petitioners] will have no adequate remedy at law. [Footnote 3]"The court held, however, that § 15(7) vested Page 372 U. S. 662 exclusive power in the Commission to suspend a change of rate for a limited time and thereby precluded District Court jurisdiction to grant injunctive relief extending the statutory period. The Court of Appeals for the Fifth Circuit affirmed, stating,"Congress, in its wisdom, has fixed seven months as the maximum period of suspension. It seems clear to us that if the courts extend that period, they are in effect amending the statute and that is a matter beyond their power."308 F.2d 181, 186. We granted certiorari, 371 U.S. 859. [Footnote 4] We affirm the judgment of the Court of Appeals.IThe Interstate Commerce Commission was granted no power to suspend proposed rate changes in the original Page 372 U. S. 663 Act of 1887. That power first appeared among the 1910 amendments introduced by the Mann-Elkins Act. [Footnote 5] The problem as to whether the application of new rates might be stayed pending decision as to their lawfulness first emerged after the Commission was empowered by the Hepburn Act of 1906 to determine the validity of proposed rates. In the absence of any suspension power in the Commission, shippers turned to the courts for injunctive relief. The results were not satisfactory. The lower federal courts evinced grave doubt whether they possessed any equity jurisdiction to grant such injunctions, and the availability of relief depended on the view of a particular court on this much controverted issue. [Footnote 6] The Interstate Commerce Commission was more concerned, however, with certain practical consequences of leaving the question with the courts. In its Annual Reports for the three years before 1910, the Commission had directed attention to the fact that such courts as entertained jurisdiction were reaching diverse results, which engendered confusion and produced competitive inequities. The large expense entailed in prosecuting an action and financing a substantial bond proved prohibitive for many small shippers of modest means. Even when a large shipper secured an injunction, the scope of its relief often protected only that particular shipper, leaving his weaker Page 372 U. S. 664 competitors at the mercy of the new rate. [Footnote 7] Therefore, the Commission reported to Congress, " . . . as a practical matter, the small shipper who cannot file the bond cannot and does not continue in business under the higher rate." I.C.C. Annual Report, 1908, p. 12. As an equally serious consequence, the regulatory goal of uniformity was jeopardized by the diverse conclusions reached by different District Courts -- even, it appears, as to the reasonableness of a particular rate change. This resulted in disparity of treatment as between different shippers, carriers, and sections of the country, causing, in turn, "discrimination and hardship to the general public." I.C.C. Annual Report, 1907, p. 10.It cannot be said that the legislative history of the grant of the suspension power to the Commission includes unambiguous evidence of a design to extinguish whatever judicial power may have existed prior to 1910 to suspend proposed rates. However, we cannot suppose that Congress, by vesting the new suspension power in the Commission, intended to give backhanded approval to the exercise of a judicial power which had brought the whole problem to a head.Moreover, Congress engaged in a protracted controversy concerning the period for which the Commission might suspend a change of rates. Such a controversy would have been a futile exercise unless the Congress also meant to foreclose judicial power to extend that period. This controversy spanned nearly two decades. At the outset in 1910, the proposal for conferring any such power on the Commission was strenuously opposed. The carriers Page 372 U. S. 665 contended that any postponement of rate changes would result in loss of revenue or competitive advantages fairly due them in the interim if the rates were finally determined to be lawful. But this opposition eventually took the form of efforts to limit the time for which suspension might be ordered by the Commission. [Footnote 8] The Mann-Elkins Act authorized a suspension for an initial period not to exceed 120 days with a discretionary power in the Commission to extend the period for a maximum additional six months. [Footnote 9] Ten years later, the Esch-Cummins Act of 1920 cut the authorized period of extension from six months to 30 days, [Footnote 10] thus reducing from 10 to five months the overall period for which the Commission might order a suspension. Congress was aware throughout the consideration of these measures that some shippers might for a time have to pay unlawful rates because a proceeding might not be concluded and an order made within the reduced time. [Footnote 11] To mitigate that hardship, Page 372 U. S. 666 the 1920 amendments authorized the Commission in such cases to require the carriers to keep detailed accounts of charges collected and to order refunds of excess charges if the Commission ultimately found the rates to be unlawful. [Footnote 12] The suspension provisions took their present form, vesting authority in the Commission to suspend for a maximum period of seven months, in the Act of 1927. [Footnote 13] The accounting and refund provisions of the 1920 law remained. Thus, as we have observed before, the present limitation was "formed after much experimentation with the period of suspension. . . ." Interstate Commerce Comm'n v. Inland Waterways Corp., 319 U. S. 671, 319 U. S. 689. Page 372 U. S. 667We cannot believe that Congress would have given such detailed consideration to the period of suspension unless it meant thereby to vest in the Commission the sole and exclusive power to suspend and to withdraw from the judiciary any preexisting power to grant injunctive relief. This Court has previously indicated its view that the present section had that effect. In Board of Railroad Comm'rs v. Great Northern R. Co., 281 U. S. 412, 281 U. S. 429, Chief Justice Hughes said for the Court: "This power of suspension was entrusted to the Commission only." [Footnote 14] The lower federal courts have also said as much. [Footnote 15] And Page 372 U. S. 668 the commentators of the matter have consistently supported the soundness of that view. [Footnote 16]There is, of course, a close nexus between the suspension power and the Commission's primary jurisdiction to determine the lawfulness and reasonableness of rates, a jurisdiction to which this Court had, even in 1910, already given the fullest recognition. Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426. [Footnote 17] This relationship suggests it would be anomalous if a Congress which created a power of suspension in the Commission because of the dissonance engendered by recourse to the injunction nevertheless meant the judicial remedy to survive. The more plausible inference is that Congress meant to foreclose a judicial power to interfere with the timing of rate changes which would be out of harmony with the uniformity of rate levels fostered by the doctrine of primary jurisdiction. Page 372 U. S. 669It must be admitted that Congress dealt with the problem as it affected the relations between shippers and carriers, making no express reference to the interests of competing carriers and their customers such as are involved in the instant case. We see no warrant in that omission, however, for a difference in result. Conflicts over rates between competing carriers were familiar to the Commission long before 1910; [Footnote 18] indeed, the struggle between competing barge and rail carriers has been going on almost since railroads came onto the national scene. Indeed, in another provision of the very same statute, Congress, in 1910, dealt explicitly with the reduction of rates by railroads competing with water carriers: Section 4(2) of the Act forbids a rail carrier competing with a water carrier to increase rates once reduced on a competitive service, unless,"after hearing by the Commission, it shall be found that such proposed increase rests upon changed conditions other than the elimination of water competition."49 U.S.C. § 4(2). In addition, § 8 of the Act, 49 U.S.C. § 8, creates a private right of action for damages -- based upon conduct violative of the Act -- which might be available, though we have no occasion here to decide the question, to a competitor claiming that a proposed rate reduction had been grossly discriminatory. Our holding today therefore means only that the injunction remedy is not available to these petitioners, just as it is unavailable to shippers.IIOur conclusion from the history of the suspension power is buttressed by a consideration of the undesirable consequences which would necessarily attend the survival of the injunction remedy. A court's disposition of an application for injunctive relief would seem to require at least Page 372 U. S. 670 some consideration of the applicant's claim that the carrier's proposed rates are unreasonable. But such consideration would create the hazard of forbidden judicial intrusion into the administrative domain. [Footnote 19] Judicial cognizance of reasonableness of rates has been limited to carefully defined statutory avenues of review. [Footnote 20] These considerations explain why courts consistently decline to suspend rates when the Commission has refused to do so, or to set aside an interim suspension order of the Commission. [Footnote 21] If an independent appraisal of the reasonableness Page 372 U. S. 671 of rates might be made for the purpose of deciding applications for injunctive relief, Congress would have failed to correct the situation so hazardous to uniformity which prompted its decision to vest the suspension power in the Commission. Moreover, such a procedure would permit a single judge to pass before final Commission action upon the question of reasonableness of a rate, which the statute expressly entrusts only to a court of three judges reviewing the Commission's completed task. [Footnote 22]Nor is the situation different in this case if it be suggested that a court of equity might rely upon the Commission's finding of unreasonableness which preceded the Commission's suspension order. The Commission's consideration Page 372 U. S. 672 of the question, through its Suspension Board, involves only a brief and informal hearing. [Footnote 23] Automatic judicial acceptance of a finding reached in that way would delegate greater effect to such an administrative process than the process itself warrants. As the basis for a judicial decree of a single district judge, such a procedure would be inconsistent with § 15 (1) of the Act, which provides that effective rates may be struck down as unlawful after a "full hearing" by the Commission. [Footnote 24]IIIThe petitioners contend that in any event injunctive relief is authorized in this case to enforce the National Transportation Policy. [Footnote 25] They argue that when the rail carriers' rates go into effect the barge line will inevitably Page 372 U. S. 673 and immediately be driven out of business, contrary to the paramount concern of the policy for the protection of water carriers threatened by rail competition. Apart from the absence of any decisive showing that the barge line would suffer this misfortune, it is clear that nothing in the National Transportation Policy, enacted many years after the 1927 revision of § 15(7), indicates that Congress intended to revive a judicial power which we have found was extinguished when the suspension power was vested in the Commission. Cf. United States v. Borden Co., 308 U. S. 188, 308 U. S. 198-199. Indeed, if anything, the policy reinforces our conclusion. The mandate to achieve a balance between competing forms of transportation is directed not to the courts, but to the Commission. [Footnote 26] It is reasonable to suppose that, had Congress felt that balance to be in danger of distortion, it would have addressed itself to our problem directly by enhancing the powers granted the Commission to enforce the policy. Surely Congress would not have meant its silence alone to imply the revival of a judicial remedy the exercise of which might well defeat, rather than promote, the objectives of the National Transportation Policy.Affirmed

U.S. Supreme CourtArrow Transp. Co. v. Southern Ry. Co., 372 U.S. 658 (1963)Arrow Transportation Co. v. Southern Railway Co.No. 430Argued January 10, 1963Decided April 15, 1963372 U.S. 658SyllabusThe Interstate Commerce Commission suspended for the maximum statutory period of seven months a schedule of reduced railroad rates on multiple-car grain shipments from certain Mississippi and Ohio River ports to various points in the Southeastern United States, pending a determination as to whether the reduction was lawful. It had not decided that question when the seven-month period expired, and petitioners sued to enjoin respondent railroads from effecting the reductions pending the Commission's decision. They claimed that application of the new rates would irreparably injure their respective economic interests, particularly because they threatened to force the petitioner barge line out of business. After a brief hearing, the District Court concluded that there was great danger of irreparable harm or injury to petitioners if the proposed rates went into effect, but that it had no jurisdiction to grant injunctive relief extending the period of suspension, because § 15(7) of the Interstate Commerce Act vested exclusive power in the Commission to suspend a proposed change of rates for a limited time. The Court of Appeals affirmed.Held: the judgment is affirmed. Pp. 372 U. S. 659-673.(a) A review of the history of the suspension power indicates that Congress intended in § 15(7) to vest in the Commission exclusive power to suspend proposed rate changes, and to withdraw from the courts any preexisting power to grant injunctive relief to parties protesting the changes. Pp. 372 U. S. 662-669.(b) The foregoing conclusion is buttressed by a consideration of the practical consequences of survival of an injunction remedy -- including, inter alia, the dangers of judicial intrusion into the administrative domain. Pp. 372 U. S. 669-672.(c) Injunctive relief is not authorized in this case by the National Transportation Policy, which obligates the Commission, not the courts, to balance the interests of competing forms of transportation. Pp. 372 U. S. 672-673.308 F.2d 181, affirmed. Page 372 U. S. 659

1984_83-1625

1. Respondents' argument that the suppression of the marihuana should be affirmed on the grounds that the officers never had probable cause to conduct a vehicle search, thus rendering Ross inapplicable, is without merit. The record shows that the officers had probable cause to believe that not only the packages but also the trucks themselves contained contraband. United States v. Chadwick, 433 U. S. 1, distinguished. Respondents' contention that the record fails to show that a vehicle search ever in fact occurred is also without merit, since even though the trucks were not searched at the scene, the Government officers conducted a vehicle search at least to the extent of entering the trucks and removing the packages at DEA headquarters. Pp. 469 U. S. 482-483.2. The warrantless search of the packages was not unreasonable merely because it occurred three days after the packages were unloaded Page 469 U. S. 479 from the trucks. Ross establishes that the officers could have lawfully searched the packages when they were first discovered in the trucks at the airstrip, and there is no requirement that the warrantless search of a vehicle occur contemporaneously with its lawful seizure. Neither Ross nor other "vehicle search" decisions of this Court suggest that warrantless searches of containers must invariably be conducted "immediately" as part of the vehicle inspection or "soon thereafter." Moreover, the Court of Appeals' approach fails to further the privacy interests protected by the Fourth Amendment. Because the officers had probable cause to believe that the trucks contained contraband, any expectation of privacy in the vehicles or their contents was subject to the officers' authority to conduct a warrantless search, and the warrantless search of the packages was not unreasonable merely because the officers returned to DEA headquarters and placed the packages in the warehouse rather than immediately opening them. Inasmuch as the Government was entitled to seize the packages and could have searched them immediately without a warrant, the warrantless search three days after the packages were placed in the warehouse was reasonable and consistent with this Court's precedent involving searches of impounded vehicles. Pp. 469 U. S. 483-488.707 F.2d 1093, reversed and remanded.O'CONNOR, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, POWELL, REHNQUIST, and STEVENS, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 469 U. S. 488.JUSTICE O'CONNOR delivered the opinion of the Court.In United States v. Ross, 456 U. S. 798 (1982), the Court held that, if police officers have probable cause to search a lawfully stopped vehicle, they may conduct a warrantless search of any containers found inside that may conceal the Page 469 U. S. 480 object of the search. The issue in the present case is whether Ross authorizes a warrantless search of packages several days after they were removed from vehicles that police officers had probable cause to believe contained contraband. Although the Court of Appeals for the Ninth Circuit acknowledged that under Ross the police officers could have searched the packages when they were first discovered in the vehicles, the court concluded that the delay after the initial seizure made the subsequent warrantless search unreasonable within the meaning of the Fourth Amendment. 707 F.2d 1093 (1983). We granted certiorari, 467 U.S. 1250 (1984), and we now reverse.IPursuant to an investigation of a suspected drug smuggling operation, a United States Customs officer went to respondent Duarte's residence in Tucson, Ariz., where he saw two pickup trucks. The Customs officer observed the trucks drive away, and he contacted other officers who conducted ground and air surveillance of the trucks as they traveled 100 miles to a remote private airstrip near Bowie, Ariz., approximately 50 miles from the Mexican border. Soon after the trucks arrived, a small aircraft landed. Although the Customs officers on the ground were unable to see what transpired, their counterparts in the air informed them that one of the trucks had approached the airplane. After a short time, the aircraft departed. A second small aircraft landed and then departed.Two Customs officers on the ground came closer and parked their vehicles about 30 yards from the two trucks. One officer approached to investigate and saw an individual at the rear of one of the trucks covering the contents with a blanket. The officer ordered respondents to come out from behind the trucks and to lie on the ground. As he and the other officer walked towards the trucks, they smelled the odor of marihuana. They saw in the back of the trucks Page 469 U. S. 481 packages wrapped in dark green plastic and sealed with tape. Based on their prior experience, the officers knew that smuggled marihuana is commonly packaged in this manner. Respondents Duarte, Leon, Gomez, Redmond, and Soto were arrested at the scene. The Customs Office surveillance aircraft followed the two small airplanes back to Tucson. Respondents Johns and Hearron, the pilots, were arrested upon landing.The Customs officers did not search the pickup trucks at the desert airstrip. Instead, after arresting the respondents who were at the scene, the Customs officers took the trucks back to Drug Enforcement Administration (DEA) headquarters in Tucson. The packages were removed from the trucks and placed in a DEA warehouse. Without obtaining a search warrant, DEA agents opened some of the packages and took samples that later proved to be marihuana. Although the record leaves unclear precisely when the agents opened the packages, the parties do not dispute the conclusion of the Court of Appeals, 707 F.2d at 1095, that the search occurred three days after the packages were seized from the pickup trucks.A federal grand jury in the District of Arizona indicted respondents for conspiracy to possess and possession of marihuana with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Before trial, the District Court granted respondents' motion to suppress the marihuana, and the Government appealed pursuant to 18 U.S.C. § 3731. The Court of Appeals rejected the Government's contentions that the plain odor of marihuana emanating from the packages made a warrant unnecessary and that respondents Johns and Hearron lacked standing to challenge the search of the packages. 707 F.2d at 1095-1096, 1099-1100. Neither of these issues is before this Court. Finally, the Court of Appeals held that Ross did not authorize the warrantless search of the packages three days after they were removed from the pickup trucks. 707 F.2d at 1097-1099. Because we disagree with this conclusion, we reverse. Page 469 U. S. 482IIRespondents argue that we should affirm the suppression of the marihuana on the ground that the Customs officers never had probable cause to conduct a vehicle search, and therefore Ross is inapplicable to this case. Instead, respondents contend that United States v. Chadwick, 433 U. S. 1 (1977), establishes that the warrantless search was unlawful. These arguments are not persuasive. The events surrounding the rendezvous of the aircraft and the pickup trucks at the isolated desert airstrip indicated that the vehicles were involved in smuggling activity. The Customs officers on the ground were unable to observe the airplanes after they landed, and consequently did not see the packages loaded into the pickup trucks. After the officers came closer and detected the distinct odor of marihuana, they had probable cause to believe that the vehicles contained contraband. See Carroll v. United States, 267 U. S. 132, 267 U. S. 149, 267 U. S. 162 (1925). Given their experience with drug smuggling cases, the officers no doubt suspected that the scent was emanating from the packages that they observed in the back of the pickup trucks. The officers, however, were unaware of the packages until they approached the trucks, and contraband might well have been hidden elsewhere in the vehicles. We agree with the Court of Appeals, see 707 F.2d at 1097, that the Customs officers had probable cause to believe that not only the packages but also the vehicles themselves contained contraband.Under the circumstances of this case, respondents' reliance on Chadwick is misplaced. In Chadwick, police officers had probable cause to believe that a footlocker contained contraband. As soon as the footlocker was placed in the trunk of an automobile, the officers seized the footlocker and later searched it without obtaining a warrant. The Court in Chadwick refused to hold that probable cause generally supports the warrantless search of luggage. 433 U.S. at 433 U. S. 11-13. Chadwick, however, did not involve the exception Page 469 U. S. 483 to the warrant requirement recognized in Carroll v. United States, supra, because the police had no probable cause to believe that the automobile, as contrasted to the footlocker, contained contraband. See 433 U.S. at 433 U. S. 11-12. This point is underscored by our decision in Ross, which held that notwithstanding Chadwick police officers may conduct a warrantless search of containers discovered in the course of a lawful vehicle search. See 456 U.S. at 456 U. S. 810-814. Given our conclusion that the Customs officers had probable cause to believe that the pickup trucks contained contraband, Chadwick is simply inapposite. See 456 U.S. at 456 U. S. 817.Respondents further contend that the record fails to show that a vehicle search ever in fact occurred. This argument is meritless. It is true that the trucks were not searched at the scene, and the record leaves unclear whether the Customs officers thoroughly searched the trucks after they were taken to DEA headquarters. The record does show, however, that the packages were unloaded from the trucks. Thus, the Customs officers conducted a vehicle search at least to the extent of entering the trucks and removing the packages. The possibility that the officers did not search the vehicles more extensively does not affect our conclusion that the packages were removed pursuant to a vehicle search. The issue presented by this case is whether the subsequent warrantless search was unreasonable merely because it occurred three days after the packages were unloaded from the pickup trucks.IIIOur analysis of the central issue in this case begins with our decision in Ross. There the Court observed that the exception to the warrant requirement recognized by Carroll allows a search of the same scope as could be authorized by a magistrate. 456 U.S. at 456 U. S. 823, 825. "A warrant to search a vehicle would support a search of every part of the vehicle that might contain the object of the search." Id. at 456 U. S. 821. Although probable cause may not generally justify a warrantless Page 469 U. S. 484 search of a container, the Court noted that the protection afforded by the Fourth Amendment varies in different settings. Id. at 456 U. S. 823. "[A]n individual's expectation of privacy in a vehicle and its contents may not survive if probable cause is given to believe that the vehicle is transporting contraband." Ibid. Cf. South Dakota v. Opperman, 428 U. S. 364, 428 U. S. 367-368 (1976) (discussing lesser expectation of privacy in motor vehicles); Cardwell v. Lewis, 417 U. S. 583, 417 U. S. 590-591 (1974) (plurality opinion). Consequently, "[i]f probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search." Ross, 456 U.S. at 456 U. S. 825.Ross, as the Court of Appeals acknowledged, 707 F.2d at 1098, establishes that the Customs officers could have lawfully searched the packages when they were first discovered inside the trucks at the desert airstrip. Moreover, our previous decisions indicate that the officers acted permissibly by waiting until they returned to DEA headquarters before they searched the vehicles and removed their contents. See id. at 1099. There is no requirement that the warrantless search of a vehicle occur contemporaneously with its lawful seizure. Texas v. White, 423 U. S. 67, 423 U. S. 68 (1975) (per curiam); Chambers v. Maroney, 399 U. S. 42, 399 U. S. 52 (1970). "[T]he justification to conduct such a warrantless search does not vanish once the car has been immobilized." Michigan v. Thomas, 458 U. S. 259, 458 U. S. 261 (1982) (per curiam). A vehicle lawfully in police custody may be searched on the basis of probable cause to believe that it contains contraband, and there is no requirement of exigent circumstances to justify such a warrantless search. Id. at 458 U. S. 261-262; see also Florida v. Meyers, 466 U. S. 380 (1984) (per curiam).The Court of Appeals concluded that Ross allows warrantless searches of containers only if the search occurs "immediately" as part of the vehicle inspection or "soon thereafter." See 707 F.2d at 1099. Neither Ross nor our other vehicle search cases suggest any such limitation. Ross involved the Page 469 U. S. 485 warrantless search of two different containers. After making a roadside arrest of the driver of an automobile, police officers opened the trunk and discovered a paper bag that contained what appeared to be narcotics. Ross, supra, at 456 U. S. 801. The officers took the car to police headquarters and after a more thorough search discovered a leather pouch containing currency. 456 U.S. at 456 U. S. 801. Ross did not distinguish between the search of the paper bag that occurred at the scene of arrest and the later search of the leather pouch. Because the police had probable cause to search the entire vehicle, the Court concluded that the police were entitled to open the containers discovered inside without first obtaining a warrant. See id. at 456 U. S. 817. Ross did not suggest that this conclusion was affected by the fact that the leather pouch was not searched until after the police had impounded the vehicle or by the existence of exigent circumstances that might have made it impractical to secure a warrant for the search of the container. Instead, Ross indicated that the legality of the search was determined by reference to the exception to the warrant requirement recognized by Carroll.Ross, as the Court of Appeals noted, did observe in a footnote that, if police may immediately search a vehicle on the street without a warrant, "a search soon thereafter at the police station is permitted if the vehicle is impounded." 456 U.S. at 456 U. S. 807, n. 9. When read in context, these remarks plainly do not suggest that searches of containers discovered in the course of a vehicle search are subject to temporal restrictions not applicable to the vehicle search itself. Moreover, Ross expressly refused to limit the application of the Carroll exception by requiring police officers to secure a warrant before they searched containers found inside a lawfully stopped vehicle. 456 U.S. at 456 U. S. 821, n. 28."The scope of a warrantless search of an automobile . . . is not defined by the nature of the container in which the contraband is secreted. Rather, it is defined by the object of the search and the places in which there is probable cause to believe that it may Page 469 U. S. 486 be found."Id. at 456 U. S. 824. Consequently, the fact that a container is involved does not in itself either expand or contract the well-established exception to the warrant requirement recognized in Carroll. See 456 U.S. at 456 U. S. 824.The approach of the Court of Appeals not only lacks support in our decision in Ross, but it also fails to further the privacy interests protected by the Fourth Amendment. Whether respondents ever had a privacy interest in the packages reeking of marihuana is debatable. We have previously observed that certain containers may not support a reasonable expectation of privacy because their contents can be inferred from their outward appearance, Arkansas v. Sanders, 442 U. S. 753, 442 U. S. 764-765, n. 13 (1979), and based on this rationale the Fourth Circuit has held that "plain odor" may justify a warrantless search of a container. See United States v. Haley, 669 F.2d 201, 203-204, and n. 3, cert. denied, 457 U.S. 1117 (1982). The Ninth Circuit, however, rejected this approach, 707 F.2d at 1096, and the Government has not pursued this issue on appeal. We need not determine whether respondents possessed a legitimate expectation of privacy in the packages. Because the Customs officers had probable cause to believe that the pickup trucks contained contraband, any expectation of privacy in the vehicles or their contents was subject to the authority of the officers to conduct a warrantless search. See Ross, 456 U.S. at 456 U. S. 823. The warrantless search of the packages was not unreasonable merely because the Customs officers returned to Tucson and placed the packages in a DEA warehouse rather than immediately opening them. Cf. United States v. Jacobsen, 466 U. S. 109, 466 U. S. 119-120 (1984) (no privacy interest in package that was in possession of and had been examined by private party); Michigan v. Thomas, supra, at 458 U. S. 261. The practical effect of the opposite conclusion would only be to direct police officers to search immediately all containers that they discover in the course of a vehicle search. Cf. Ross, supra, Page 469 U. S. 487 at 456 U. S. 807, n. 9 (noting similar consequence if police could not conduct warrantless search after vehicle is impounded). This result would be of little benefit to the person whose property is searched, and where police officers are entitled to seize the container and continue to have probable cause to believe that it contains contraband, we do not think that delay in the execution of the warrantless search is necessarily unreasonable. Cf. Cardwell v. Lewis, 417 U.S. at 417 U. S. 592-593 (impoundment and 1-day delay did not make examination of exterior of vehicle unreasonable where it could have been done on the spot); United States v. Edwards, 415 U. S. 800, 415 U. S. 805-806 (1974) (warrantless search of suspect's clothing permissible notwithstanding delay after initial arrest).We do not suggest that police officers may indefinitely retain possession of a vehicle and its contents before they complete a vehicle search. Cf. Coolidge v. New Hampshire, 403 U. S. 443, 403 U. S. 523 (1971) (WHITE, J., dissenting). Nor do we foreclose the possibility that the owner of a vehicle or its contents might attempt to prove that delay in the completion of a vehicle search was unreasonable because it adversely affected a privacy or possessory interest. Cf. United States v. Place, 462 U. S. 696 (1983). We note that in this case there was probable cause to believe that the trucks contained contraband and there is no plausible argument that the object of the search could not have been concealed in the packages. Respondents do not challenge the legitimacy of the seizure of the trucks or the packages, and they never sought return of the property. Thus, respondents have not even alleged, much less proved, that the delay in the search of packages adversely affected legitimate interests protected by the Fourth Amendment. Inasmuch as the Government was entitled to seize the packages and could have searched them immediately without a warrant, we conclude that the warrantless search three days after the packages were placed in the DEA warehouse was reasonable and consistent with our Page 469 U. S. 488 precedent involving searches of impounded vehicles. See Florida v. Meyers, 466 U. S. 380 (1984); Michigan v. Thomas, 458 U. S. 259 (1982); Cooper v. California, 386 U. S. 58, 386 U. S. 61-62 (1967) (upholding warrantless search that took place seven days after seizure of automobile pending forfeiture proceedings).Accordingly, the decision of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtUnited States v. Johns, 469 U.S. 478 (1985)United States v. JohnsNo. 83-1625Argued November 28, 1984Decided January 21, 1985469 U.S. 478CERTIORARI TO THE UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUITSyllabusPursuant to an investigation of a suspected drug smuggling operation, United States Customs officers, by ground and air surveillance, observed two pickup trucks as they traveled to a remote private airstrip in Arizona and the arrival and departure there of two small airplanes. The officers smelled the odor of marihuana as they approached the trucks and saw in the back of the trucks packages wrapped in dark green plastic and sealed with tape, a common method of packaging marihuana. After arresting certain of the respondents at the airstrip, the officers took the trucks back to Drug Enforcement Administration (DEA) headquarters, and the packages were then placed in a DEA warehouse. Three days after the packages were seized from the trucks, Government agents, without obtaining a search warrant, opened some of the packages and took samples that later proved to be marihuana. Before trial on federal drug charges, the District Court granted the respondents' motion to suppress the marihuana, and the Court of Appeals affirmed, concluding, inter alia, that United States v. Ross, 456 U. S. 798 -- which held that, if police officers have probable cause to search a lawfully stopped vehicle, they may conduct a warrantless search of any containers found inside that may conceal the object of the search -- did not authorize the warrantless search of the packages three days after they were removed from the trucks.Held:

1978_77-1575

MR. JUSTICE WHITE delivered the opinion of the Court.In May, 1976, the Federal Communications Commission promulgated rules requiring cable television systems that have 3,500 or more subscribers and carry broadcast signals to develop, at a minimum, a 20-channel capacity by 1986, to make available certain channels for access by third parties, and to furnish equipment and facilities for access purposes. Report and Order in Docket No. 20508, 59 F.C.C.2d 294 (1976 Order). The issue here is whether these rules are "reasonably ancillary to the effective performance of the Commission's various responsibilities for the regulation of television broadcasting," United States v. Southwestern Cable Co., 392 U. S. 157, 392 U. S. 178 (1968), and hence within the Commission's statutory authority.IThe regulations now under review had their genesis in rules prescribed by the Commission in 1972 requiring all cable operators in the top 100 television markets to design their systems to include at least 20 channels and to dedicate 4 of those channels for public, governmental, educational, and leased access. The rules were reassessed in the course of further rulemaking proceedings. As a result, the Commission modified a compliance deadline, Report and Order in Docket No. 206, 54 F.C.C.2d 207 (1975), effected certain substantive changes, and extended the rules to all cable systems having 3,500 or more subscribers, 1976 Order, supra. In its Page 440 U. S. 692 1976 Order, the Commission reaffirmed its view that there was "a definite societal good" in preserving access channels, though it acknowledged that the "overall impact that use of these channels can have may have been exaggerated in the past." 59 F.C.C.2d at 296.As ultimately adopted, the rules prescribe a series of interrelated obligations ensuring public access to cable systems of a designated size and regulate the manner in which access is to be afforded and the charges that may be levied for providing it. Under the rules, cable systems must posses a minimum capacity of 20 channels, as well as the technical capability for accomplishing two-way, nonvoice communication. [Footnote 1] 47 CFR § 76.252 (1977). Moreover, to the extent of their available activated channel capacity, [Footnote 2] cable systems must allocate four Page 440 U. S. 693 separate channels for use by public, educational, local governmental, and leased-access users, with one channel assigned to each. § 76.254(a). Absent demand for full-time use of each access channel, the combined demand can be accommodated with fewer than four channels, but with at least one. §§ 76.254(b), (c). [Footnote 3] When demand on a particular access channel exceeds a specified limit, the cable system must provide another access channel for the same purpose, to the extent of the system's activated capacity. § 76.254(d). The rules also require cable systems to make equipment available for those utilizing public access channels. § 76.256(a).Under the rules, cable operators are deprived of all discretion regarding who may exploit their access channels and what may be transmitted over such channels. System operators are specifically enjoined from exercising any control over the content of access programming, except that they must adopt rules proscribing the transmission on most access channels of lottery information and commercial matter. [Footnote 4] §§ 76.256(b), (d). Page 440 U. S. 694 The regulations also instruct cable operators to issue rules providing for first-come, nondiscriminatory access on public and leased channels. §§ 76.256(d)(1), (3).Finally, the rules circumscribe what operators may charge for privileges of access and use of facilities and equipment. No charge may be assessed for the use of one public access channel. § 76.256(c)(2). Operators may not charge for the use of educational and governmental access for the first five years the system services such users. § 76.256(c)(1). Leased access channel users must be charged an "appropriate" fee. § 76.256(d)(3). Moreover, the rules admonish that charges for equipment, personnel, and production exacted from access users "shall be reasonable and consistent with the goal of affording users a low-cost means of television access." § 76.256(c)(3). And "[n]o charges shall be made for live public access programs not exceeding five minutes in length." Ibid. Lastly, a system may not charge access users for utilization of its playback equipment or the personnel required to operate such equipment when the cable's production equipment is not deployed and when tapes or film can be played without technical alteration to the system's equipment. Petition for Reconsideration in Docket No. 20508, 62 F.C.C.2d 399, 407 (1976).The Commission's capacity and access rules were challenged on jurisdictional grounds in the course of the rulemaking proceedings. In its 1976 Order, the Commission rejected such comments on the ground that the regulations furthered objectives that it might properly pursue in its supervision over broadcasting. Specifically, the Commission maintained that its rules would promote"the achievement of longstanding communications regulatory objectives by increasing outlets for Page 440 U. S. 695 local self-expression and augmenting the public's choice of programs."59 F.C.C.2d at 298. The Commission did not find persuasive the contention that "the access requirements are in effect common carrier obligations which are beyond our authority to impose." Id. at 299. The explanation was:"So long as the rules adopted are reasonably related to achieving objectives for which the Commission has been assigned jurisdiction, we do not think they can be held beyond our authority merely by denominating them as somehow 'common carrier' in nature. The proper question, we believe, is not whether they fall in one category or another of regulation -- whether they are more akin to obligations imposed on common carriers or obligations imposed on broadcasters to operate in the public interest -- but whether the rules adopted promote statutory objectives."Ibid. Additionally, the Commission denied that the rules violated the First Amendment, reasoning that, when broadcasting or related activity by cable systems is involved, First Amendment values are served by measures facilitating an exchange of ideas.On petition for review, the Eighth Circuit set aside the Commission's access, channel capacity, and facilities rules as beyond the agency's jurisdiction. 571 F.2d 1025 (1978). The court was of the view that the regulations were not reasonably ancillary to the Commission's jurisdiction over broadcasting, a jurisdictional condition established by past decisions of this Court. The rules amounted to an attempt to impose common carrier obligations on cable operators, the court said, and thus ran counter to the statutory command that broadcasters themselves may not be treated as common carriers. See Communications Act of 1934, § 3(h), 47 U.S.C. § 153(h). Furthermore, the court made plain its belief that the regulations presented grave First Amendment problems. Page 440 U. S. 696 We granted certiorari, 439 U.S. 816 (1978), and we now affirm. [Footnote 5]IIAThe Commission derives its regulatory authority from the Communications Act of 1934, 48 Stat. 1064, as amended, 47 U.S.C. § 151 et seq. The Act preceded the advent of cable television, and understandably does not expressly provide for the regulation of that medium. But it is clear that Congress meant to confer "broad authority" on the Commission, H.R.Rep. No. 1850, 73d Cong., 2d Sess., 1 (1934), so as "to maintain, through appropriate administrative control, a grip on the dynamic aspects of radio transmission." FCC v. Pottsville Broadcasting Co., 309 U. S. 134, 309 U. S. 138 (1940). To that end, Congress subjected to regulation "all interstate and foreign communication by wire or radio." Communications Act of 1934, § 2(a), 47 U.S.C. § 152(a). In United States v. Southwestern Cable Co., we construed § 2(a) as conferring on the Commission a circumscribed range of power to regulate cable television, and we reaffirmed that determination in United States v. Midwest Video Corp., 406 U. S. 649 (1972). The question now before us is whether the Act, as construed in these two cases, authorizes the capacity and access regulations that are here under challenge.The Southwestern litigation arose out of the Commission's efforts to ameliorate the competitive impact on local broadcasting operations resulting from importation of distant signals by cable systems into the service areas of local stations. Page 440 U. S. 697 Fearing that such importation might "destroy or seriously degrade the service offered by a television broadcaster," First Report and Order, 38 F.C.C. 683, 700 (1965), the Commission promulgated rules requiring CATV systems [Footnote 6] to carry the signals of broadcast stations into whose service area they brought competing signals, to avoid duplication of local station programming on the same day such programming was broadcast, and to refrain from bringing new distant signals into the 100 largest television markets unless first demonstrating that the service would comport with the public interest. See Second Report and Order, 2 F.C.C.2d 725 (1966). [Footnote 7]The Commission's assertion of jurisdiction was based on its view that "the successful performance" of its duty to ensure "the orderly development of an appropriate system of local television broadcasting" depended upon regulation of cable operations. 392 U.S. at 392 U. S. 177. Against the background of the administrative undertaking at issue, the Court construed § 2(a) of the Act as granting the Commission jurisdiction over cable television "reasonably ancillary to the effective performance of the Commission's various responsibilities for the regulation of television broadcasting." 392 U.S. at 392 U. S. 178.Soon after our decision in Southwestern, the Commission Page 440 U. S. 698 resolved"to condition the carriage of television broadcast signals . . . upon a requirement that the CATV system also operate to a significant extent as a local outlet by originating."Notice of Proposed Rulemaking and Notice of Inquiry, 15 F.C.C.2d 417, 422 (1968). It stated that its"concern with CATV carriage of broadcast signals [was] not just a matter of avoidance of adverse effects, but extend[ed] also to requiring CATV affirmatively to further statutory policies."Ibid. Accordingly, the Commission promulgated a rule providing that CATV systems having 3,500 or more subscribers may not carry the signal of any television broadcast station unless the system also operates to a significant extent as a local outlet by originating its own programs -- or cablecasting -- and maintains facilities for local production and presentation of programs other than automated services. 47 CFR § 74.1111(a) (1970). This Court, by a 5-to-4 vote but without an opinion for the Court, sustained the Commission's jurisdiction to issue these regulations in United States v. Midwest Video Corp., supra.Four Justices, in an opinion by MR. JUSTICE BRENNAN, reaffirmed the view that the Commission has jurisdiction over cable television, and that such authority is delimited by its statutory responsibilities over television broadcasting. They thought that the reasonably ancillary standard announced in Southwestern permitted regulation of CATV "with a view not merely to protect, but to promote, the objectives for which the Commission had been assigned jurisdiction over broadcasting." 406 U.S. at 406 U. S. 667. The Commission had reasonably determined, MR. JUSTICE BRENNAN's opinion declared, that the origination requirement would"'further the achievement of long-established regulatory goals in the field of television broadcasting by increasing the number of outlets for community self-expression and augmenting the public's choice of programs and types of services. . . .'"Id. at 406 U. S. 667-668, quoting First Report and Order, 20 F.C.C.2d 201, 202 (1969). Page 440 U. S. 699 The conclusion was that the "program origination rule [was] within the Commission's authority recognized in Southwestern." 406 U.S. at 406 U.S. 670.THE CHIEF JUSTICE, in a separate opinion concurring in the result, admonished that the Commission's origination rule "strain[ed] the outer limits" of its jurisdiction. Id. at 406 U. S. 676. Though not "fully persuaded that the Commission ha[d] made the correct decision in [the] case," he was inclined to defer to its Judgment. Ibid. [Footnote 8]BBecause its access and capacity rules promote the long-established regulatory goals of maximization of outlets for local expression and diversification of programming -- the objectives promoted by the rule sustained in Midwest Video -- the Commission maintains that it plainly had jurisdiction to promulgate them. Respondents, in opposition, view the access regulations as an intrusion on cable system operations that is qualitatively different from the impact of the rule upheld in Midwest Video. Specifically, it is urged that by requiring the allocation of access channels to categories of users specified by Page 440 U. S. 700 the regulations and by depriving the cable operator of the power to select individual users or to control the programming on such channels, the regulations wrest a considerable degree of editorial control from the cable operator and in effect compel the cable system to provide a kind of common carrier service. Respondents contend, therefore, that the regulations are not only qualitatively different from those heretofore approved by the courts, but also contravene statutory limitations designed to safeguard the journalistic freedom of broadcasters, particularly the command of § 3(h) of the Act that "a person engaged in . . . broadcasting shall not . . . be deemed a common carrier." 47 U.S.C. § 153(h).We agree with respondents that recognition of agency jurisdiction to promulgate the access rules would require an extension of this Court's prior decisions. Our holding in Midwest Video sustained the Commission's authority to regulate cable television with a purpose affirmatively to promote goals pursued in the regulation of television broadcasting; and the plurality's analysis of the origination requirement stressed the requirement's nexus to such goals. But the origination rule did not abrogate the cable operators' control over the composition of their programming, as do the access rules. It compelled operators only to assume a more positive role in that regard, one comparable to that fulfilled by television broadcasters. Cable operators had become enmeshed in the field of television broadcasting, and, by requiring them to engage in the functional equivalent of broadcasting, the Commission had sought "only to ensure that [they] satisfactorily [met] community needs within the context of their undertaking." 406 U.S. at 406 U.S. 670 (opinion of BRENNAN, J.).With its access rules, however, the Commission has transferred control of the content of access cable channels from cable operators to members of the public who wish to communicate by the cable medium. Effectively, the Commission has relegated cable systems, pro tanto, to common carrier Page 440 U. S. 701 status. [Footnote 9] A common carrier service in the communications context [Footnote 10] is one that"makes a public offering to provide [communications facilities] whereby all members of the public who choose to employ such facilities may communicate or transmit intelligence of their own design and choosing. . . ."Report and Order, Industrial Radiolocation Service, Docket No. 16106, 5 F.C.C.2d 197, 202 (1966); see National Association of Regulatory Utility Comm'rs v. FCC, 173 U.S.App.D.C. 413, 424, 525 F.2d 630, 641, cert. denied, 425 U.S. 992 (1976); Multipoint Distribution Service, 45 F.C.C.2d 616, 618 (1974). A common carrier does not "make individualized decisions, in particular cases, whether and on what terms to deal." National Association of Regulatory Utility Comm'rs v. FCC, supra at 424, 525 F.2d at 641.The access rules plainly impose common carrier obligations on cable operators. [Footnote 11] Under the rules, cable systems are required to hold out dedicated channels on a first-come, Page 440 U. S. 702 nondiscriminatory basis. 47 CFR §§ 76.254(a), 76.2513(d) (1977). [Footnote 12] Operators are prohibited from determining or influencing the content of access programming. § 76.256(b). And the rules delimit what operators may charge for access and use of equipment. § 76.256(c). Indeed, in its early consideration of access obligations -- whereby "CATV operators [would] furnish studio facilities and technical assistance [but] have no control over program content except as may be required by the Commission's rules and applicable law" -- the Commission acknowledged that the result would be the operation of cable systems "as common carriers on some channels." First Report and Order in Docket No. 1897, 20 F.C.C.2d at 207; see id. at 202; Cable Television Report and Order, 36 F.C.C.2d 143, 197 (1972). In its 1976 Order, the Commission did not directly deny that its access requirements compelled common carriage, and it has conceded before this Court that the rules "can be viewed as a limited form of common carriage-type obligation." Brief for Petitioner in No. 77-1575, p 39. But the Commission continues to insist that this characterization of the obligation imposed by the rules is immaterial to the question of its power to issue them; its authority to promulgate the rules is assured, in the Commission's view, so long as the rules promote statutory objectives.Congress, however, did not regard the character of regulatory obligations as irrelevant to the determination of whether they might permissibly be imposed in the context of broadcasting itself. The Commission is directed explicitly by § 3(h) of the Act not to treat persons engaged in broadcasting as common carriers. We considered the genealogy and the meaning of this provision in Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U. S. 94 (1973). Page 440 U. S. 703 The issue in that case was whether a broadcast licensee's general policy of not selling advertising time to individuals or groups wishing to speak on issues important to them violated the Communications Act of 1934 or the First Amendment. Our examination of the legislative history of the Radio Act of 1927 -- the precursor to the Communications Act of 1934 -- prompted us to conclude that, "in the area of discussion of public issues, Congress chose to leave broad journalistic discretion with the licensee." 412 U.S. at 412 U. S. 105. We determined, in fact, that"Congress specifically dealt with -- and firmly rejected -- the argument that the broadcast facilities should be open on a nonselective basis to all persons wishing to talk about public issues."Ibid. The Court took note of a bill reported to the Senate by the Committee on Interstate Commerce providing in part that any licensee who permits"'a broadcasting station to be used . . . for the discussion of any question affecting the public . . . shall make no discrimination as to the use of such broadcasting station, and with respect to said matters the licensee shall be deemed a common carrier in interstate commerce: Provided, that such licensee shall have no power to censor the material broadcast.'"Id. at 412 U. S. 106, quoting 67 Cong.Rec. 12503 (1926). That bill was amended to eliminate the common carrier obligation because of the perceived lack of wisdom in "put[ting] the broadcaster under the hampering control of being a common carrier,'" and because of problems in administering a nondiscriminatory right of access. 412 U.S. at 412 U. S. 106; see 67 Cong.Rec. 12502, 12504 (1926).The Court further observed that, in enacting the 1934 Act, Congress rejected still another proposal"that would have imposed a limited obligation on broadcasters to turn over their microphones to persons wishing to speak out on certain public issues."412 U.S. at 412 U. S. 107-108. [Footnote 13] "Instead," the Court noted, Page 440 U. S. 704"Congress, after prolonged consideration, adopted § 3(h), which specifically provides that 'a person engaged in radio broadcasting shall not, insofar as such person is so engaged, be deemed a common carrier.'"Id. at 412 U. S. 108-109."Congress' flat refusal to impose a common carrier' right of access for all persons wishing to speak out on public issues," id. at 412 U. S. 110, was perceived as consistent with other provisions of the 1934 Act evincing "a legislative desire to preserve values of private journalism." Id. at 412 U. S. 109. Notable among them was § 326 of the Act, which enjoins the Commission from exercising "`the power of censorship over the radio communications or signals transmitted by any radio station,'" and commands that "`no regulation or condition shall be promulgated or fixed by the Commission which shall interfere with the right of free speech by means of radio communication.'" 412 U.S. at 412 U. S. 110, quoting 47 U.S.C. § 326.The holding of the Court in Columbia Broadcasting was in accord with the view of the Commission that the Act itself did not require a licensee to accept paid editorial advertisements. Accordingly, we did not decide the question whether the Act, though not mandating the claimed access, would nevertheless permit the Commission to require broadcasters to extend a range of public access by regulations similar to those at issue here. The Court speculated that the Commission might have flexibility to regulate access, 412 U.S. at 412 U. S. 122, and that Page 440 U. S. 705"[c]onceivably, at some future date, Congress or the Commission -- or the broadcasters -- may devise some kind of limited right of access that is both practicable and desirable,"id. at 412 U. S. 131. But this is insufficient support for the Commission's position in the present case. The language of § 3(h) is unequivocal; it stipulates that broadcasters shall not be treated as common carriers. As we see it, § 3(h), consistently with the policy of the Act to preserve editorial control of programming in the licensee, forecloses any discretion in the Commission to impose access requirements amounting to common carrier obligations on broadcast systems. [Footnote 14] The provision's background manifests a congressional belief that the intrusion worked by such regulation on the journalistic integrity of broadcasters would overshadow any benefits associated with the resulting public access. It is difficult to deny, then, that forcing broadcasters to develop a "nondiscriminatory system for controlling access . . . is precisely what Congress intended to avoid through § 3(h) of the Act." 412 U.S. at 412 U. S. 140 n. 9 (STEWART, J., concurring); see id. at 412 U. S. 152, and n. 2 (Douglas, J., concurring in judgment). [Footnote 15] Page 440 U. S. 706Of course, § 3(h) does not explicitly limit the regulation of cable systems. But without reference to the provisions of the Act directly governing broadcasting, the Commission's jurisdiction under § 2(a) would be unbounded. See United States v. Midwest Video Corp., 406 U.S. at 406 U. S. 661 (opinion of BRENNAN, J.). Though afforded wide latitude in its supervision over communication by wire, the Commission was not delegated unrestrained authority. The Court regarded the Commission's regulatory effort at issue in Southwestern as consistent with the Act, because it had been found necessary to ensure the achievement of the Commission's statutory responsibilities. [Footnote 16] Specifically, regulation was imperative to prevent Page 440 U. S. 707 interference with the Commission's work in the broadcasting area. And in Midwest Video. the Commission had endeavored to promote long-established goals of broadcasting regulation. Petitioners do not deny that statutory objectives pertinent to broadcasting bear on what the Commission might require cable systems to do. Indeed, they argue that the Commission's authority to promulgate the access rules derives from the relationship of those rules to the objectives discussed in Midwest Video. But they overlook the fact that Congress has restricted the Commission's ability to advance objectives associated with public access at the expense of the journalistic freedom of persons engaged in broadcasting.That limitation is not one having peculiar applicability to television broadcasting. Its force is not diminished by the variant technology involved in cable transmissions. Cable operators now share with broadcasters a significant amount of editorial discretion regarding what their programming will include. As the Commission itself has observed,"both in their signal carriage decisions and in connection with their origination function, cable television systems are afforded considerable control over the content of the programming they provide."Report and Order in Docket No. 20829, 69 F.C.C.2d 1324, 1333 (1978). [Footnote 17] Page 440 U. S. 708In determining, then, whether the Commission's assertion of jurisdiction is "reasonably ancillary to the effective performance of [its] various responsibilities for the regulation of television broadcasting," United States v. Southwestern Cable Co., 392 U.S. at 392 U. S. 178, we are unable to ignore Congress' stern disapproval -- evidenced in § 3(h) -- of negation of the editorial discretion otherwise enjoyed by broadcasters and cable operators alike. Though the lack of congressional guidance has, in the past, led us to defer -- albeit cautiously -- to the Commission's judgment regarding the scope of its authority, here there are strong indications that agency flexibility was to be sharply delimited.The exercise of jurisdiction in Midwest Video, it has been said, "strain[ed] the outer limits" of Commission authority. 406 U.S. at 406 U. S. 676 (BURGER, C.J., concurring in result). In light of the hesitancy with which Congress approached the access issue in the broadcast area, and in view of its outright rejection of a broad right of public access on a common carrier basis, we are constrained to hold that the Commission exceeded those limits in promulgating its access rules. [Footnote 18] The Page 440 U. S. 709 Commission may not regulate cable systems as common carriers, just as it may not impose such obligations on television broadcasters. We think authority to compel cable operators to provide common carriage of public-originated transmissions must come specifically from Congress. [Footnote 19]Affirmed

U.S. Supreme CourtFCC v. Midwest Video Corp., 440 U.S. 689 (1979)Federal Communications Commission v. Midwest Video CorporationNo. 77-1575Argued January 10, 1979Decided April 2, 1979*440 U.S. 689SyllabusThe Federal Communications Commission (FCC) promulgated rules requiring cable television systems that have 3,500 or more subscribers and carry broadcast signals to develop, at a minimum, a 20-channel capacity by 1986, to make available certain channels for access by public, educational, local governmental, and leased-access users, and to furnish equipment and facilities for access purposes. Under the rules, cable operators are deprived of all discretion regarding who may exploit their access channels and what may be transmitted over such channels. During the rulemaking proceedings, the FCC rejected a challenge to the rules on jurisdictional grounds, maintaining that the rules would promote"the achievement of longstanding communications regulatory objectives by increasing outlets for local self-expression and augmenting the public's choice of programs."On petition for review, the Court of Appeals set aside the FCC's rules as beyond the agency's jurisdiction. The court was of the view that the rules amounted to an attempt to impose common carrier obligations on cable operators, and thus ran counter to the command of § 3(h) of the Communications Act of 1934 that "a person engaged in . . . broadcasting shall not . . . be deemed a common carrier."Held: The FCC's rules are not "reasonably ancillary to the effective performance of the Commission's various responsibilities for the regulation of television broadcasting," United States v. Southwestern Cable Co., 392 U. S. 157, 392 U. S. 178, and hence are not within the FCC's statutory authority. Pp. 440 U. S. 696-709.(a) The FCC's access rules plainly impose common carrier obligations on cable operators. United States v. Midwest Video Corp., 406 U. S. 649, distinguished. Under the rules, cable systems are required to hold out dedicated channels on a first-come, nondiscriminatory basis; operators are prohibited from determining or influencing the content of access Page 440 U. S. 690 programing; and charges for access and use of equipment are delimited. Pp. 440 U. S. 699-702.(b) Consistently with the policy of the Act to preserve editorial control of programming in the licensee, § 3(h) forecloses any discretion in the FCC to impose access requirements amounting to common carrier obligations on broadcast systems. The provision's background manifests a congressional belief that the intrusion worked by such regulation on the journalistic integrity of broadcasters would overshadow any benefits associated with the resulting public access. Although § 3(h) does not explicitly limit the regulation of cable systems, Congress' limitation on the FCC's ability to advance objectives associated with public access at the expense of the journalistic freedom of persons engaged in broadcasting is not one having peculiar applicability to television broadcasting. Its force is not diminished by the variant technology involved in cable transmissions. Pp. 440 U. S. 702-707.(c) In light of the hesitancy with which Congress has approached the access issue in the broadcast area, and in view of its outright rejection of a broad right of public access on a common carrier basis, this Court is constrained to hold that the FCC exceeded the limits of its authority in promulgating its access rules. The FCC may not regulate cable systems as common carriers, just as it may not impose such obligations on television broadcasters. Authority to compel cable operators to provide common carriage of public-originated transmissions must come specifically from Congress. Pp. 440 U. S. 708-709.571 F.2d 1025, affirmed.WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. STEVENS, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 440 U. S. 709. Page 440 U. S. 691

1991_90-1424

p. 581. BLACKMUN, J., filed a dissenting opinion, in which O'CONNOR, J., joined, post, p. 589.Edwin S. Kneedler argued the cause for petitioner. With him on the briefs were Solicitor General Starr, Acting Assistant Attorney General Hartman, Deputy Solicitor General Wallace, Robert L. Klarquist, David C. Shilton, Thomas L. Sansonetti, and Michael Young.Brian B. O'Neill argued the cause for respondents. With him on the brief were Steven C. Schroer and Richard A. Duncan. *JUSTICE SCALIA delivered the opinion of the Court with respect to Parts I, II, III-A, and IV; and an opinion with respect to Part III-B, in which THE CHIEF JUSTICE, JusTICE WHITE, and JUSTICE THOMAS join.This case involves a challenge to a rule promulgated by the Secretary of the Interior interpreting § 7 of the Endangered*Terence P. Ross, Daniel J. Popeo, and Richard A. Samp filed a brief for the Washington Legal Foundation et al. as amici curiae urging reversal.Briefs of amici curiae urging affirmance were filed for the City of Austin et al. by William A. Butler, Angus E. Crane, Michael J. Bean, Kenneth Oden, James M. McCormack, and Wm. Robert Irvin; for the American Association of Zoological Parks & Aquariums et al. by Ronald J. Greene and W Hardy Callcott; for the American Institute of Biological Sciences by Richard J. Wertheimer and Charles M. Chambers; and for the Ecotropica Foundation of Brazil et al. by Durwood J. Zaelke.A brief of amici curiae was filed for the State of Texas et al. by Patrick J. Mahoney, Dan Morales, Attorney General of Texas, Will Pryor, First Assistant Attorney General, Mary F. Keller, Deputy Attorney General, and Nancy N. Lynch, Mary Ruth Holder, and Shannon J. Kilgore, Assistant Attorneys General, Grant Woods, Attorney General of Arizona, Winston Bryant, Attorney General of Arkansas, Daniel E. Lungren, Attorney General of California, Robert A. Butterworth, Attorney General of Florida, Michael E. Carpenter, Attorney General of Maine, Frank J. Kelley, Attorney General of Michigan, Hubert H. Humphrey III, Attorney General of Minnesota, Robert J. Del Tufo, Attorney General of New Jersey, Robert Abrams, Attorney General of New York, Lee Fisher, Attorney General of Ohio, and Jeffrey L. Amestoy, Attorney General of Vermont, Victor A. Kovner, Leonard J. Koerner, Neal M. Janey, and Louise H. Renne.558Species Act of 1973 (ESA), 87 Stat. 892, as amended, 16 U. S. C. § 1536, in such fashion as to render it applicable only to actions within the United States or on the high seas. The preliminary issue, and the only one we reach, is whether respondents here, plaintiffs below, have standing to seek judicial review of the rule.IThe ESA, 87 Stat. 884, as amended, 16 U. S. C. § 1531 et seq., seeks to protect species of animals against threats to their continuing existence caused by man. See generally TVA v. Hill, 437 U. S. 153 (1978). The ESA instructs the Secretary of the Interior to promulgate by regulation a list of those species which are either endangered or threatened under enumerated criteria, and to define the critical habitat of these species. 16 U. S. C. §§ 1533, 1536. Section 7(a)(2) of the Act then provides, in pertinent part:"Each Federal agency shall, in consultation with and with the assistance of the Secretary [of the Interior], insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with affected States, to be critical." 16 U. S. C. § 1536(a)(2).In 1978, the Fish and Wildlife Service (FWS) and the N ational Marine Fisheries Service (NMFS), on behalf of the Secretary of the Interior and the Secretary of Commerce respectively, promulgated a joint regulation stating that the obligations imposed by § 7(a)(2) extend to actions taken in foreign nations. 43 Fed. Reg. 874 (1978). The next year, however, the Interior Department began to reexamine its position. Letter from Leo Kuliz, Solicitor, Department of the Interior, to Assistant Secretary, Fish and Wildlife and Parks, Aug. 8, 1979. A revised joint regulation, reinterpret-559ing § 7(a)(2) to require consultation only for actions taken in the United States or on the high seas, was proposed in 1983, 48 Fed. Reg. 29990, and promulgated in 1986, 51 Fed. Reg. 19926; 50 CFR 402.01 (1991).Shortly thereafter, respondents, organizations dedicated to wildlife conservation and other environmental causes, filed this action against the Secretary of the Interior, seeking a declaratory judgment that the new regulation is in error as to the geographic scope of § 7(a)(2) and an injunction requiring the Secretary to promulgate a new regulation restoring the initial interpretation. The District Court granted the Secretary's motion to dismiss for lack of standing. Defenders of Wildlife v. Hodel, 658 F. Supp. 43, 47-48 (Minn. 1987). The Court of Appeals for the Eighth Circuit reversed by a divided vote. Defenders of Wildlife v. Hodel, 851 F.2d 1035 (1988). On remand, the Secretary moved for summary judgment on the standing issue, and respondents moved for summary judgment on the merits. The District Court denied the Secretary's motion, on the ground that the Eighth Circuit had already determined the standing question in this case; it granted respondents' merits motion, and ordered the Secretary to publish a revised regulation. Defenders of Wildlife v. Hodel, 707 F. Supp. 1082 (Minn. 1989). The Eighth Circuit affirmed. 911 F.2d 117 (1990). We granted certiorari, 500 U. S. 915 (1991).IIWhile the Constitution of the United States divides all power conferred upon the Federal Government into "legislative Powers," Art. I, § 1, "[t]he executive Power," Art. II, § 1, and "[t]he judicial Power," Art. III, § 1, it does not attempt to define those terms. To be sure, it limits the jurisdiction of federal courts to "Cases" and "Controversies," but an executive inquiry can bear the name "case" (the Hoffa case) and a legislative dispute can bear the name "controversy" (the Smoot-Hawley controversy). Obviously, then, the Constitution's central mechanism of separation of powers de-560pends largely upon common understanding of what activities are appropriate to legislatures, to executives, and to courts. In The Federalist No. 48, Madison expressed the view that "[i]t is not infrequently a question of real nicety in legislative bodies whether the operation of a particular measure will, or will not, extend beyond the legislative sphere," whereas "the executive power [is] restrained within a narrower compass and ... more simple in its nature," and "the judiciary [is] described by landmarks still less uncertain." The Federalist No. 48, p. 256 (Carey and McClellan eds. 1990). One of those landmarks, setting apart the "Cases" and "Controversies" that are of the justiciable sort referred to in Article III-"serv[ing] to identify those disputes which are appropriately resolved through the judicial process," Whitmore v. Arkansas, 495 U. S. 149, 155 (1990)-is the doctrine of standing. Though some of its elements express merely prudential considerations that are part of judicial self-government, the core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III. See, e. g., Allen v. Wright, 468 U. S. 737, 751 (1984).Over the years, our cases have established that the irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an "injury in fact" -an invasion of a legally protected interest which is (a) concrete and particularized, see id., at 756; Warth v. Seldin, 422 U. S. 490, 508 (1975); Sierra Club v. Morton, 405 U. S. 727, 740-741, n. 16 (1972); 1 and (b) "actual or imminent, not 'conjectural' or 'hypothetical,'" Whitmore, supra, at 155 (quoting Los Angeles v. Lyons, 461 U. S. 95,102 (1983)). Second, there must be a causal connection between the injury and the conduct complained of-the injury has to be "fairly ... trace[able] to the challenged action of the defendant, and not ... thee] result [of] the independent action of some third party not before the court." Simon v. Eastern Ky. Welfare1 By particularized, we mean that the injury must affect the plaintiff in a personal and individual way.561Rights Organization, 426 U. S. 26, 41-42 (1976). Third, it must be "likely," as opposed to merely "speculative," that the injury will be "redressed by a favorable decision." Id., at 38, 43.The party invoking federal jurisdiction bears the burden of establishing these elements. See FW/PBS, Inc. v. Dallas, 493 U. S. 215, 231 (1990); Warth, supra, at 508. Since they are not mere pleading requirements but rather an indispensable part of the plaintiff's case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i. e., with the manner and degree of evidence required at the successive stages of the litigation. See Lujan v. National Wildlife Federation, 497 U. S. 871, 883-889 (1990); Gladstone, Realtors v. Village of Bellwood, 441 U. S. 91, 114-115, and n. 31 (1979); Simon, supra, at 45, n. 25; Warth, supra, at 527, and n. 6 (Brennan, J., dissenting). At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we "presum[e] that general allegations embrace those specific facts that are necessary to support the claim." National Wildlife Federation, supra, at 889. In response to a summary judgment motion, however, the plaintiff can no longer rest on such "mere allegations," but must "set forth" by affidavit or other evidence "specific facts," Fed. Rule Civ. Proc. 56(e), which for purposes of the summary judgment motion will be taken to be true. And at the final stage, those facts (if controverted) must be "supported adequately by the evidence adduced at trial." Gladstone, supra, at 115, n. 31.When the suit is one challenging the legality of government action or inaction, the nature and extent of facts that must be averred (at the summary judgment stage) or proved (at the trial stage) in order to establish standing depends considerably upon whether the plaintiff is himself an object of the action (or forgone action) at issue. If he is, there is ordinarily little question that the action or inaction has562caused him injury, and that a judgment preventing or requiring the action will redress it. When, however, as in this case, a plaintiff's asserted injury arises from the government's allegedly unlawful regulation (or lack of regulation) of someone else, much more is needed. In that circumstance, causation and redressability ordinarily hinge on the response of the regulated (or regulable) third party to the government action or inaction-and perhaps on the response of others as well. The existence of one or more of the essential elements of standing "depends on the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict," ASARCO Inc. v. Kadish, 490 U. S. 605, 615 (1989) (opinion of KENNEDY, J.); see also Simon, supra, at 41-42; and it becomes the burden of the plaintiff to adduce facts showing that those choices have been or will be made in such manner as to produce causation and permit redressability of injury. E. g., Warth, supra, at 505. Thus, when the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily "substantially more difficult" to establish. Allen, supra, at 758; Simon, supra, at 44-45; Warth, supra, at 505.IIIWe think the Court of Appeals failed to apply the foregoing principles in denying the Secretary's motion for summary judgment. Respondents had not made the requisite demonstration of (at least) injury and redressability.ARespondents' claim to injury is that the lack of consultation with respect to certain funded activities abroad "increas[es] the rate of extinction of endangered and threatened species." Complaint' 5, App. 13. Of course, the desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purpose of563standing. See, e. g., Sierra Club v. Morton, 405 U. S., at 734. "But the 'injury in fact' test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured." Id., at 734-735. To survive the Secretary's summary judgment motion, respondents had to submit affidavits or other evidence showing, through specific facts, not only that listed species were in fact being threatened by funded activities abroad, but also that one or more of respondents' members would thereby be "directly" affected apart from their" 'special interest' in thee] subject." Id., at 735, 739. See generally Hunt v. Washington State Apple Advertising Comm'n, 432 U. S. 333, 343 (1977).With respect to this aspect of the case, the Court of Appeals focused on the affidavits of two Defenders' membersJoyce Kelly and Amy Skilbred. Ms. Kelly stated that she traveled to Egypt in 1986 and "observed the traditional habitat of the endangered nile crocodile there and intend[s] to do so again, and hope[s] to observe the crocodile directly," and that she "will suffer harm in fact as the result of [the] American ... role ... in overseeing the rehabilitation of the Aswan High Dam on the Nile ... and [in] develop[ing] ... Egypt's ... Master Water Plan." App. 101. Ms. Skilbred averred that she traveled to Sri Lanka in 1981 and "observed thee] habitat" of "endangered species such as the Asian elephant and the leopard" at what is now the site of the Mahaweli project funded by the Agency for International Development (AID), although she "was unable to see any of the endangered species"; "this development project," she continued, "will seriously reduce endangered, threatened, and endemic species habitat including areas that I visited ... [, which] may severely shorten the future of these species"; that threat, she concluded, harmed her because she "intend[s] to return to Sri Lanka in the future and hope[s] to be more fortunate in spotting at least the endangered elephant and leopard." Id., at 145-146. When Ms. Skilbred was asked564at a subsequent deposition if and when she had any plans to return to Sri Lanka, she reiterated that "I intend to go back to Sri Lanka," but confessed that she had no current plans:"I don't know [when]. There is a civil war going on right now. I don't know. Not next year, I will say. In the future." Id., at 318.We shall assume for the sake of argument that these affidavits contain facts showing that certain agency-funded projects threaten listed species-though that is questionable. They plainly contain no facts, however, showing how damage to the species will produce "imminent" injury to Mses. Kelly and Skilbred. That the women "had visited" the areas of the projects before the projects commenced proves nothing. As we have said in a related context, "'Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any continuing, present adverse effects.'" Lyons, 461 U. S., at 102 (quoting O'Shea v. Littleton, 414 U. S. 488, 495-496 (1974)). And the affiants' profession of an "inten[t]" to return to the places they had visited before-where they will presumably, this time, be deprived of the opportunity to observe animals of the endangered species-is simply not enough. Such "some day" intentions-without any description of concrete plans, or indeed even any specification of when the some day will be-do not support a finding of the "actual or imminent" injury that our cases require. See supra, at 560.22 The dissent acknowledges the settled requirement that the injury complained of be, if not actual, then at least imminent, but it contends that respondents could get past summary judgment because "a reasonable finder of fact could conclude ... that ... Kelly or Skilbred will soon return to the project sites." Post, at 591. This analysis suffers either from a factual or from a legal defect, depending on what the "soon" is supposed to mean. If "soon" refers to the standard mandated by our precedentsthat the injury be "imminent," Whitmore v. Arkansas, 495 U. S. 149, 155 (1990)-we are at a loss to see how, as a factual matter, the standard can be met by respondents' mere profession of an intent, some day, to565Besides relying upon the Kelly and Skilbred affidavits, respondents propose a series of novel standing theories. The first, inelegantly styled "ecosystem nexus," proposes that any person who uses any part of a "contiguous ecosystem" adversely affected by a funded activity has standing even if the activity is located a great distance away. This approach, as the Court of Appeals correctly observed, is inconsistent with our opinion in National Wildlife Federation, which held that a plaintiff claiming injury from environmental dam-return. But if, as we suspect, "soon" means nothing more than "in this lifetime," then the dissent has undertaken quite a departure from our precedents. Although "imminence" is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes-that the injury is '" "certainly impending,"'" id., at 158 (emphasis added). It has been stretched beyond the breaking point when, as here, the plaintiff alleges only an injury at some indefinite future time, and the acts necessary to make the injury happen are at least partly within the plaintiff's own control. In such circumstances we have insisted that the injury proceed with a high degree of immediacy, so as to reduce the possibility of deciding a case in which no injury would have occurred at all. See, e. g., id., at 156-160; Los Angeles v. Lyons, 461 U. S. 95, 102-106 (1983).There is no substance to the dissent's suggestion that imminence is demanded only when the alleged harm depends upon "the affirmative actions of third parties beyond a plaintiff's control," post, at 592. Our cases mention third-party-caused contingency, naturally enough; but they also mention the plaintiff's failure to show that he will soon expose himself to the injury, see, e. g., Lyons, supra, at 105-106; O'Shea v. Littleton, 414 U. S. 488,497 (1974); Ashcroft v. Mattis, 431 U. S. 171, 172-173, n. 2 (1977) (per curiam). And there is certainly no reason in principle to demand evidence that third persons will take the action exposing the plaintiff to harm, while presuming that the plaintiff himself will do so.Our insistence upon these established requirements of standing does not mean that we would, as the dissent contends, "demand ... detailed descriptions" of damages, such as a "nightly schedule of attempted activities" from plaintiffs alleging loss of consortium. Post, at 593. That case and the others posited by the dissent all involve actual harm; the existence of standing is clear, though the precise extent of harm remains to be determined at trial. Where there is no actual harm, however, its imminence (though not its precise extent) must be established.566age must use the area affected by the challenged activity and not an area roughly "in the vicinity" of it. 497 U. S., at 887-889; see also Sierra Club, 405 U. S., at 735. It makes no difference that the general-purpose section of the ESA states that the Act was intended in part "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved," 16 U. S. c. § 1531(b). To say that the Act protects ecosystems is not to say that the Act creates (if it were possible) rights of action in persons who have not been injured in fact, that is, persons who use portions of an ecosystem not perceptibly affected by the unlawful action in question.Respondents' other theories are called, alas, the "animal nexus" approach, whereby anyone who has an interest in studying or seeing the endangered animals anywhere on the globe has standing; and the "vocational nexus" approach, under which anyone with a professional interest in such animals can sue. Under these theories, anyone who goes to see Asian elephants in the Bronx Zoo, and anyone who is a keeper of Asian elephants in the Bronx Zoo, has standing to sue because the Director of the Agency for International Development (AID) did not consult with the Secretary regarding the AID-funded project in Sri Lanka. This is beyond all reason. Standing is not "an ingenious academic exercise in the conceivable," United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U. S. 669, 688 (1973), but as we have said requires, at the summary judgment stage, a factual showing of perceptible harm. It is clear that the person who observes or works with a particular animal threatened by a federal decision is facing perceptible harm, since the very subject of his interest will no longer exist. It is even plausible-though it goes to the outermost limit of plausibility-to think that a person who observes or works with animals of a particular species in the very area of the world where that species is threatened by a federal decision is facing such harm, since some animals that567might have been the subject of his interest will no longer exist, see Japan Whaling Assn. v. American Cetacean Society, 478 U. S. 221, 231, n. 4 (1986). It goes beyond the limit, however, and into pure speculation and fantasy, to say that anyone who observes or works with an endangered species, anywhere in the world, is appreciably harmed by a single project affecting some portion of that species with which he has no more specific connection.33 The dissent embraces each of respondents' "nexus" theories, rejecting this portion of our analysis because it is "unable to see how the distant location of the destruction necessarily (for purposes of ruling at summary judgment) mitigates the harm" to the plaintiff. Post, at 594-595. But summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U. S. 317, 322 (1986). Respondents had to adduce facts, therefore, on the basis of which it could reasonably be found that concrete injury to their members was, as our cases require, "certainly impending." The dissent may be correct that the geographic remoteness of those members (here in the United States) from Sri Lanka and Aswan does not "necessarily" prevent such a finding-but it assuredly does so when no further facts have been brought forward (and respondents have produced none) showing that the impact upon animals in those distant places will in some fashion be reflected here. The dissent's position to the contrary reduces to the notion that distance never prevents harm, a proposition we categorically reject. It cannot be that a person with an interest in an animal automatically has standing to enjoin federal threats to that species of animal, anywhere in the world. Were that the case, the plaintiff in Sierra Club, for example, could have avoided the necessity of establishing anyone's use of Mineral King by merely identifying one of its members interested in an endangered species of flora or fauna at that location. JUSTICE BLACKMUN'S accusation that a special rule is being crafted for "environmental claims," post, at 595, is correct, but he is the craftsman.JUSTICE STEVENS, by contrast, would allow standing on an apparent "animal nexus" theory to all plaintiffs whose interest in the animals is "genuine." Such plaintiffs, we are told, do not have to visit the animals because the animals are analogous to family members. Post, at 583-584, and n. 2. We decline to join JUSTICE STEVENS in this Linnaean leap. It is unclear to us what constitutes a "genuine" interest; how it differs from568BBesides failing to show injury, respondents failed to demonstrate redressability. Instead of attacking the separate decisions to fund particular projects allegedly causing them harm, respondents chose to challenge a more generalized level of Government action (rules regarding consultation), the invalidation of which would affect all overseas projects. This programmatic approach has obvious practical advantages, but also obvious difficulties insofar as proof of causation or redressability is concerned. As we have said in another context, "suits challenging, not specifically identifiable Government violations of law, but the particular programs agencies establish to carry out their legal obligations ... [are], even when premised on allegations of several instances of violations of law, ... rarely if ever appropriate for federalcourt adjudication." Allen, 468 U. S., at 759-760.The most obvious problem in the present case is redressability. Since the agencies funding the projects were not parties to the case, the District Court could accord relief only against the Secretary: He could be ordered to revise his regulation to require consultation for foreign projects. But this would not remedy respondents' alleged injury unless the funding agencies were bound by the Secretary's regulation, which is very much an open question. Whereas in other contexts the ESA is quite explicit as to the Secretary's controlling authority, see, e. g., 16 U. S. C. § 1533(a)(1) ("The Secretary shall" promulgate regulations determining endangered species); § 1535(d)(1) ("The Secretary is authorized to provide financial assistance to any State"), with respect to consultation the initiative, and hence arguably the initial responsibility for determining statutory necessity, lies witha "nongenuine" interest (which nonetheless prompted a plaintiff to file suit); and why such an interest in animals should be different from such an interest in anything else that is the subject of a lawsuit.569the agencies, see § 1536(a)(2) ("Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any" funded action is not likely to jeopardize endangered or threatened species) (emphasis added). When the Secretary promulgated the regulation at issue here, he thought it was binding on the agencies, see 51 Fed. Reg. 19928 (1986). The Solicitor General, however, has repudiated that position here, and the agencies themselves apparently deny the Secretary's authority. (During the period when the Secretary took the view that § 7(a)(2) did apply abroad, AID and FWS engaged in a running controversy over whether consultation was required with respect to the Mahaweli project, AID insisting that consultation applied only to domestic actions.)Respondents assert that this legal uncertainty did not affect redressability (and hence standing) because the District Court itself could resolve the issue of the Secretary's authority as a necessary part of its standing inquiry. Assuming that it is appropriate to resolve an issue of law such as this in connection with a threshold standing inquiry, resolution by the District Court would not have remedied respondents' alleged injury anyway, because it would not have been binding upon the agencies. They were not parties to the suit, and there is no reason they should be obliged to honor an incidental legal determination the suit produced.4 The4 We need not linger over the dissent's facially impracticable suggestion, post, at 595-596, that one agency of the Government can acquire the power to direct other agencies by simply claiming that power in its own regulations and in litigation to which the other agencies are not parties. As for the contention that the other agencies will be "collaterally estopped" to challenge our judgment that they are bound by the Secretary of the Interior's views, because of their participation in this suit, post, at 596-597: Whether or not that is true now, it was assuredly not true when this suit was filed, naming the Secretary alone. "The existence of federal jurisdiction ordinarily depends on the facts as they exist when the complaint is filed." Newman-Green, Inc. v. Alfonzo-Larrain, 490 U. S. 826, 830 (1989) (empha-570Opinion of SCALIA, J.Court of Appeals tried to finesse this problem by simply proclaiming that "[w]e are satisfied that an injunction requiring the Secretary to publish [respondents' desired] regulatio[n] ... would result in consultation." Defenders of Wildlife, 851 F. 2d, at 1042,1043-1044. We do not know what would justify that confidence, particularly when the Justice Department (presumably after consultation with the agencies) has taken the position that the regulation is not binding.5 Thesis added). It cannot be that, by later participating in the suit, the State Department and AID retroactively created a redress ability (and hence a jurisdiction) that did not exist at the outset.The dissent's rejoinder that redress ability was clear at the outset because the Secretary thought the regulation binding on the agencies, post, at 598-599, n. 4, continues to miss the point: The agencies did not agree with the Secretary, nor would they be bound by a district court holding (as to this issue) in the Secretary's favor. There is no support for the dissent's novel contention, ibid., that Rule 19 of the Federal Rules of Civil Procedure, governing joinder of indispensable parties, somehow alters our longstanding rule that jurisdiction is to be assessed under the facts existing when the complaint is filed. The redressability element of the Article III standing requirement and the "complete relief" referred to by Rule 19 are not identical. Finally, we reach the dissent's contention, post, at 599, n. 4, that by refusing to waive our settled rule for purposes of this case we have made "federal subject-matter jurisdiction ... a one-way street running the Executive Branch's way." That is so, we are told, because the Executive can dispel jurisdiction where it previously existed (by either conceding the merits or by pointing out that nonparty agencies would not be bound by a ruling), whereas a plaintiff cannot retroactively create jurisdiction based on postcomplaint litigation conduct. But any defendant, not just the Government, can dispel jurisdiction by conceding the merits (and presumably thereby suffering a judgment) or by demonstrating standing defects. And permitting a defendant to point out a preexisting standing defect late in the day is not remotely comparable to permitting a plaintiff to establish standing on the basis of the defendant's litigation conduct occurring after standing is erroneously determined.5 Seizing on the fortuity that the case has made its way to this Court, JUSTICE STEVENS protests that no agency would ignore "an authoritative construction of the [ESA] by this Court." Post, at 585. In that he is probably correct; in concluding from it that plaintiffs have demonstrated redress ability, he is not. Since, as we have pointed out above, standing571short of the matter is that redress of the only injury in fact respondents complain of requires action (termination of funding until consultation) by the individual funding agencies; and any relief the District Court could have provided in this suit against the Secretary was not likely to produce that action.A further impediment to redressability is the fact that the agencies generally supply only a fraction of the funding for a foreign project. AID, for example, has provided less than 10% of the funding for the Mahaweli project. Respondents have produced nothing to indicate that the projects they have named will either be suspended, or do less harm to listed species, if that fraction is eliminated. As in Simon, 426 U. S., at 43-44, it is entirely conjectural whether the nonagency activity that affects respondents will be altered or affected by the agency activity they seek to achieve.6 There is no standing.IVThe Court of Appeals found that respondents had standing for an additional reason: because they had suffered a "procedural injury." The so-called "citizen-suit" provision of the ESA provides, in pertinent part, that "any person may com-is to be determined as of the commencement of suit; since at that point it could certainly not be known that the suit would reach this Court; and since it is not likely that an agency would feel compelled to accede to the legal view of a district court expressed in a case to which it was not a party; redressability clearly did not exist.6 The dissent criticizes us for "overlook[ing]" memoranda indicating that the Sri Lankan Government solicited and required AID's assistance to mitigate the effects of the Mahaweli project on endangered species, and that the Bureau of Reclamation was advising the Aswan project. Post, at 600-601. The memoranda, however, contain no indication whatever that the projects will cease or be less harmful to listed species in the absence of AID funding. In fact, the Sri Lanka memorandum suggests just the opposite: It states that AID's role will be to mitigate the" 'negative impacts to the wildlife,'" post, at 600, which means that the termination of AID funding would exacerbate respondents' claimed injury.572mence a civil suit on his own behalf (A) to enjoin any person, including the United States and any other governmental instrumentality or agency ... who is alleged to be in violation of any provision of this chapter." 16 U. S. C. § 1540(g). The court held that, because § 7(a)(2) requires interagency consultation, the citizen-suit provision creates a "procedural righ[tJ" to consultation in all "persons"-so that anyone can file suit in federal court to challenge the Secretary's (or presumably any other official's) failure to follow the assertedly correct consultative procedure, notwithstanding his or her inability to allege any discrete injury flowing from that failure. 911 F. 2d, at 121-122. To understand the remarkable nature of this holding one must be clear about what it does not rest upon: This is not a case where plaintiffs are seeking to enforce a procedural requirement the disregard of which could impair a separate concrete interest of theirs (e. g., the procedural requirement for a hearing prior to denial of their license application, or the procedural requirement for an environmental impact statement before a federal facility is constructed next door to them).7 Nor is it simply a case where concrete injury has been suffered by many persons, as in mass fraud or mass tort situations. Nor, finally, is it the7 There is this much truth to the assertion that "procedural rights" are special: The person who has been accorded a procedural right to protect his concrete interests can assert that right without meeting all the normal standards for redressability and immediacy. Thus, under our case law, one living adjacent to the site for proposed construction of a federally licensed dam has standing to challenge the licensing agency's failure to prepare an environmental impact statement, even though he cannot establish with any certainty that the statement will cause the license to be withheld or altered, and even though the dam will not be completed for many years. (That is why we do not rely, in the present case, upon the Government's argument that, even if the other agencies were obliged to consult with the Secretary, they might not have followed his advice.) What respondents' "procedural rights" argument seeks, however, is quite different from this: standing for persons who have no concrete interests affected-persons who live (and propose to live) at the other end of the country from the dam.573unusual case in which Congress has created a concrete private interest in the outcome of a suit against a private party for the Government's benefit, by providing a cash bounty for the victorious plaintiff. Rather, the court held that the injury-in-fact requirement had been satisfied by congressional conferral upon all persons of an abstract, selfcontained, noninstrumental "right" to have the Executive observe the procedures required by law. We reject this view.8We have consistently held that a plaintiff raising only a generally available grievance about government-claiming only harm to his and every citizen's interest in proper application of the Constitution and laws, and seeking relief that8The dissent's discussion of this aspect of the case, post, at 601-606, distorts our opinion. We do not hold that an individual cannot enforce procedural rights; he assuredly can, so long as the procedures in question are designed to protect some threatened concrete interest of his that is the ultimate basis of his standing. The dissent, however, asserts that there exist "classes of procedural duties ... so enmeshed with the prevention of a substantive, concrete harm that an individual plaintiff may be able to demonstrate a sufficient likelihood of injury just through the breach of that procedural duty." Post, at 605. If we understand this correctly, it means that the Government's violation of a certain (undescribed) class of procedural duty satisfies the concrete-injury requirement by itself, without any showing that the procedural violation endangers a concrete interest of the plaintiff (apart from his interest in having the procedure observed). We cannot agree. The dissent is unable to cite a single case in which we actually found standing solely on the basis of a "procedural right" unconnected to the plaintiff's own concrete harm. Its suggestion that we did so in Japan Whaling Assn. v. American Cetacean Soc., 478 U. S. 221 (1986), and Robertson v. Methow Valley Citizens Council, 490 U. S. 332 (1989), post, at 602-603, 605, is not supported by the facts. In the former case, we found that the environmental organizations had standing because the "whale watching and studying of their members w[ould] be adversely affected by continued whale harvesting," see 478 U. S., at 230-231, n. 4; and in the latter we did not so much as mention standing, for the very good reason that the plaintiff was a citizens' council for the area in which the challenged construction was to occur, so that its members would obviously be concretely affected, see Methow Valley Citizens Council v. Regional Forester, 833 F.2d 810, 812-813 (CA9 1987).574no more directly and tangibly benefits him than it does the public at large-does not state an Article III case or controversy. For example, in Fairchild v. Hughes, 258 U. S. 126, 129-130 (1922), we dismissed a suit challenging the propriety of the process by which the Nineteenth Amendment was ratified. Justice Brandeis wrote for the Court:"[This is] not a case within the meaning of ... Article III .... Plaintiff has [asserted] only the right, possessed by every citizen, to require that the Government be administered according to law and that the public moneys be not wasted. Obviously this general right does not entitle a private citizen to institute in the federal courts a suit .... " Ibid.In Massachusetts v. Mellon, 262 U. S. 447 (1923), we dismissed for lack of Article III standing a taxpayer suit challenging the propriety of certain federal expenditures. We said:"The party who invokes the power [of judicial review] must be able to show not only that the statute is invalid but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally .... Here the parties plaintiff have no such case .... [T]heir complaint ... is merely that officials of the executive department of the government are executing and will execute an act of Congress asserted to be unconstitutional; and this we are asked to prevent. To do so would be not to decide a judicial controversy, but to assume a position of authority over the governmental acts of another and coequal department, an authority which plainly we do not possess." Id., at 488-489.In Ex parte Levitt, 302 U. S. 633 (1937), we dismissed a suit contending that Justice Black's appointment to this Court violated the Ineligibility Clause, Art. I, § 6, cl. 2.575"It is an established principle," we said, "that to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show that he has sustained or is immediately in danger of sustaining a direct injury as the result of that action and it is not sufficient that he has merely a general interest common to all members of the public." 302 U. S., at 634. See also Doremus v. Board of Ed. of Hawthorne, 342 U. S. 429, 433434 (1952) (dismissing taxpayer action on the basis of Mellon).More recent cases are to the same effect. In United States v. Richardson, 418 U. S. 166 (1974), we dismissed for lack of standing a taxpayer suit challenging the Government's failure to disclose the expenditures of the Central Intelligence Agency, in alleged violation of the constitutional requirement, Art. I, § 9, cl. 7, that "a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time." We held that such a suit rested upon an impermissible "generalized grievance," and was inconsistent with "the framework of Article III" because "the impact on [plaintiff] is plainly undifferentiated and 'common to all members of the public.'" Richardson, supra, at 171, 176-177. And in Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. 208 (1974), we dismissed for the same reasons a citizen-taxpayer suit contending that it was a violation of the Incompatibility Clause, Art. I, § 6, cl. 2, for Members of Congress to hold commissions in the military Reserves. We said that the challenged action, "standing alone, would adversely affect only the generalized interest of all/citizens in constitutional governance .... We reaffirm Levitt in holding that standing to sue may not be predicated upon an interest of th[is] kind .... " Schlesinger, supra, at 217, 220. Since Schlesinger we have on two occasions held that an injury amounting only to the alleged violation of a right to have the Government act in accordance with law was not judicially cognizable because576"'assertion of a right to a particular kind of Government conduct, which the Government has violated by acting differently, cannot alone satisfy the requirements of Art. III without draining those requirements of meaning.'" Allen, 468 U. S., at 754; Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 483 (1982). And only two Terms ago, we rejected the notion that Article III permits a citizen suit to prevent a condemned criminal's execution on the basis of "'the public interest protections of the Eighth Amendment'''; once again, "[t]his allegation raise[d] only the 'generalized interest of all citizens in constitutional governance' ... and [was] an inadequate basis on which to grant ... standing." Whitmore, 495 U. S., at 160.To be sure, our generalized-grievance cases have typically involved Government violation of procedures assertedly ordained by the Constitution rather than the Congress. But there is absolutely no basis for making the Article III inquiry turn on the source of the asserted right. Whether the courts were to act on their own, or at the invitation of Congress, in ignoring the concrete injury requirement described in our cases, they would be discarding a principle fundamental to the separate and distinct constitutional role of the Third Branch-one of the essential elements that identifies those "Cases" and "Controversies" that are the business of the courts rather than of the political branches. "The province of the court," as Chief Justice Marshall said in Marbury v. Madison, 1 Cranch 137, 170 (1803), "is, solely, to decide on the rights of individuals." Vindicating the public interest (including the public interest in Government observance of the Constitution and laws) is the function of Congress and the Chief Executive. The question presented here is whether the public interest in proper administration of the laws (specifically, in agencies' observance of a particular, statutorily prescribed procedure) can be converted into an individual right by a statute that denominates it as such, and577that permits all citizens (or, for that matter, a subclass of citizens who suffer no distinctive concrete harm) to sue. If the concrete injury requirement has the separation-ofpowers significance we have always said, the answer must be obvious: To permit Congress to convert the undifferentiated public interest in executive officers' compliance with the law into an "individual right" vindicable in the courts is to permit Congress to transfer from the President to the courts the Chief Executive's most important constitutional duty, to "take Care that the Laws be faithfully executed," Art. II, § 3. It would enable the courts, with the permission of Congress, "to assume a position of authority over the governmental acts of another and co-equal department," Massachusetts v. Mellon, 262 U. S., at 489, and to become" 'virtually continuing monitors of the wisdom and soundness of Executive action.'" Allen, supra, at 760 (quoting Laird v. Tatum, 408 U. S. 1, 15 (1972)). We have always rejected that vision of our role:"When Congress passes an Act empowering administrative agencies to carryon governmental activities, the power of those agencies is circumscribed by the authority granted. This permits the courts to participate in law enforcement entrusted to administrative bodies only to the extent necessary to protect justiciable individual rights against administrative action fairly beyond the granted powers .... This is very far from assuming that the courts are charged more than administrators or legislators with the protection of the rights of the people. Congress and the Executive supervise the acts of administrative agents .... But under Article III, Congress established courts to adjudicate cases and controversies as to claims of infringement of individual rights whether by unlawful action of private persons or by the exertion of unauthorized administrative power." Stark v. Wickard, 321 U. S. 288, 309-310 (1944) (footnote omitted).578"Individual rights," within the meaning of this passage, do not mean public rights that have been legislatively pronounced to belong to each individual who forms part of the public. See also Sierra Club, 405 U. S., at 740-741, n.16.Nothing in this contradicts the principle that "[t]he ... injury required by Art. III may exist solely by virtue of 'statutes creating legal rights, the invasion of which creates standing.'" Warth, 422 U. S., at 500 (quoting Linda R. S. v. Richard D., 410 U. S. 614, 617, n. 3 (1973)). Both of the cases used by Linda R. S. as an illustration of that principle involved Congress' elevating to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate in law (namely, injury to an individual's personal interest in living in a racially integrated community, see Trafficante v. Metropolitan Life Ins. Co., 409 U. S. 205, 208-212 (1972), and injury to a company's interest in marketing its product free from competition, see Hardin v. Kentucky Utilities Co., 390 U. S. 1, 6 (1968)). As we said in Sierra Club, "[Statutory] broadening [of] the categories of injury that may be alleged in support of standing is a different matter from abandoning the requirement that the party seeking review must himself have suffered an injury." 405 U. S., at 738. Whether or not the principle set forth in Warth can be extended beyond that distinction, it is clear that in suits against the Government, at least, the concrete injury requirement must remain.***We hold that respondents lack standing to bring this action and that the Court of Appeals erred in denying the summary judgment motion filed by the United States. The opinion of the Court of Appeals is hereby reversed, and the cause is remanded for proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 1991SyllabusLUJAN, SECRETARY OF THE INTERIOR v.DEFENDERS OF WILDLIFE ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUITNo. 90-1424. Argued December 3, 1991-Decided June 12, 1992Section 7(a)(2) of the Endangered Species Act of 1973 divides responsibilities regarding the protection of endangered species between petitioner Secretary of the Interior and the Secretary of Commerce, and requires each federal agency to consult with the relevant Secretary to ensure that any action funded by the agency is not likely to jeopardize the continued existence or habitat of any endangered or threatened species. Both Secretaries initially promulgated a joint regulation extending § 7(a)(2)'s coverage to actions taken in foreign nations, but a subsequent joint rule limited the section's geographic scope to the United States and the high seas. Respondents, wildlife conservation and other environmental organizations, filed an action in the District Court, seeking a declaratory judgment that the new regulation erred as to § 7(a)(2)'s geographic scope and an injunction requiring the Secretary of the Interior to promulgate a new rule restoring his initial interpretation. The Court of Appeals reversed the District Court's dismissal of the suit for lack of standing. Upon remand, on cross-motions for summary judgment, the District Court denied the Secretary's motion, which renewed his objection to standing, and granted respondents' motion, ordering the Secretary to publish a new rule. The Court of Appeals affirmed.Held: The judgment is reversed, and the case is remanded. 911 F.2d 117, reversed and remanded.JUSTICE SCALIA delivered the opinion of the Court, except as to Part III-B, concluding that respondents lack standing to seek judicial review of the rule. Pp. 559-567,571-578.(a) As the parties invoking federal jurisdiction, respondents bear the burden of showing standing by establishing, inter alia, that they have suffered an injury in fact, i. e., a concrete and particularized, actual or imminent invasion of a legally protected interest. To survive a summary judgment motion, they must set forth by affidavit or other evidence specific facts to support their claim. Standing is particularly difficult to show here, since third parties, rather than respondents, are the object of the Government action or inaction to which respondents object. Pp. 559-562.556Syllabus(b) Respondents did not demonstrate that they suffered an injury in fact. Assuming that they established that funded activities abroad threaten certain species, they failed to show that one or more of their members would thereby be directly affected apart from the members' special interest in the subject. See Sierra Club v. Morton, 405 U. S. 727, 735, 739. Mfidavits of members claiming an intent to revisit project sites at some indefinite future time, at which time they will presumably be denied the opportunity to observe endangered animals, do not suffice, for they do not demonstrate an "imminent" injury. Respondents also mistakenly rely on a number of other novel standing theories. Their theory that any person using any part of a contiguous ecosystem adversely affected by a funded activity has standing even if the activity is located far away from the area of their use is inconsistent with this Court's opinion in Lujan v. National Wildlife Federation, 497 U. S. 871. And they state purely speculative, nonconcrete injuries when they argue that suit can be brought by anyone with an interest in studying or seeing endangered animals anywhere on the globe and anyone with a professional interest in such animals. pp. 562-567.(c) The Court of Appeals erred in holding that respondents had standing on the ground that the statute's citizen-suit provision confers on all persons the right to file suit to challenge the Secretary's failure to follow the proper consultative procedure, notwithstanding their inability to allege any separate concrete injury flowing from that failure. This Court has consistently held that a plaintiff claiming only a generally available grievance about government, unconnected with a threatened concrete interest of his own, does not state an Article III case or controversy. See, e. g., Fairchild v. Hughes, 258 U. S. 126, 129-130. Vindicating the public interest is the function of the Congress and the Chief Executive. To allow that interest to be converted into an individual right by a statute denominating it as such and permitting all citizens to sue, regardless of whether they suffered any concrete injury, would authorize Congress to transfer from the President to the courts the Chief Executive's most important constitutional duty, to "take Care that the Laws be faithfully executed," Art. II, § 3. Pp. 571-578.SCALIA, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III-A, and IV, in which REHNQUIST, C. J., and WHITE, KENNEDY, SOUTER, and THOMAS, JJ., joined, and an opinion with respect to Part III-B, in which REHNQUIST, C. J., and WHITE and THOMAS, JJ., joined. KENNEDY, J., filed an opinion concurring in part and concurring in the judgment, in which SOUTER, J., joined, post, p. 579. STEVENS, J., filed an opinion concurring in the judgment, post,557Full Text of Opinion

1958_278

MR. JUSTICE FRANKFURTER delivered the opinion of the Court.Acting on a complaint from a resident of the 4300 block of Reisterstown Road, Baltimore, Maryland, that there were rats in her basement, Gentry, an inspector of the Baltimore City Health Department, began an inspection of the houses in the vicinity looking for the source of the rats. In the middle of the afternoon of February 27, 1958, Gentry knocked on the door or appellant's detached frame home at 4335 Reisterstown Road. After receiving no response, he proceeded to inspect the area outside the house. This inspection revealed that the house was in an "extreme state of decay," and that, in the rear of the house, there was a pile later identified as "rodent feces mixed with straw and trash and debris to approximately half a ton." During this inspection, appellant came around the side of the house and asked Gentry to explain his presence. Gentry responded that he had evidence of rodent infestation and asked appellant for permission to inspect the basement area. Appellant refused. At no time did Gentry have a warrant authorizing him to enter. The next forenoon, Gentry, in the company of two police officers, returned to appellant's house. After receiving no response to his knock, he reinspected the exterior of the premises. He then swore out a warrant for appellant's arrest alleging a violation of § 120 of Art. 12 of the Baltimore City Code. That section provides:"Whenever the Commissioner of Health shall have cause to suspect that a nuisance exists in any house, cellar or enclosure, he may demand entry therein in the day time, and if the owner or occupier shall refuse or delay to open the same and admit a free examination, he shall forfeit and pay for every such refusal the sum of Twenty Dollars. "Page 359 U. S. 362Appellant was arrested on March 5, and the next day was found guilty of the offense alleged in the warrant by a Police Justice for the Northern District of Baltimore and fined twenty dollars. On appeal, the Criminal Court of Baltimore, in a de novo proceeding, also found appellant guilty. The Maryland Court of Appeals denied certiorari. The case came here under a challenge, 28 U.S.C. § 1257(2), to the validity of § 120, to determine whether appellant's conviction for resisting an inspection of his house without a warrant was obtained in violation of the Fourteenth Amendment.The Health Code of the City of Baltimore, of which § 120 is an important part, deals with many of the multiform aspects of hygiene in modern urban areas. A vital portion concerns the hygiene of housing. Typical of the content and method of enforcing its provisions is the section requiring that"[e]very dwelling and every part thereof shall be kept clean and free from any accumulation of dirt, filth, rubbish, garbage or similar matter, and shall be kept free from vermin or rodent infestation."Baltimore City Code, Art. 12, § 112. If the occupant of a building fails to meet this standard, he is notified by the Commissioner of Health to abate the substandard conditions. [Footnote 1] Failure to remove these hazards to community health gives rise to criminal prosecution. Ibid. The attempted inspection of appellant's home was merely to ascertain the existence of evils to be corrected upon due notification or, in default of such correction, to be made the basis of punishment.We have said that "[t]he security of one's privacy against arbitrary intrusion by the police" is fundamental to a free society, and, as such, protected by the Fourteenth Page 359 U. S. 363 Amendment. Wolf v. Colorado, 338 U. S. 25, 338 U. S. 27. Application of the broad restraints of due process compels inquiry into the nature of the demand being made upon individual freedom in a particular context and the justification of social need on which the demand rests.The history of the constitutional protection against official invasion of the citizen's home makes explicit the human concerns which it was meant to respect. In years prior to the Revolution, leading voices in England and the Colonies protested against the ransacking by Crown officers of the homes of citizens in search of evidence of crime or of illegally imported goods. The vivid memory by the newly independent Americans of these abuses produced the Fourth Amendment as a safeguard against such arbitrary official action by officers of the new Union, as like provisions had already found their way into State Constitutions.In 1765, in England, what is properly called the great case of Entick v. Carrington, 19 Howell's State Trials, col. 1029, announced the principle of English law which became part of the Bill of Rights and whose basic protection has become imbedded in the concept of due process of law. It was there decided that English law did not allow officers of the Crown to break into a citizen's home, under cover of a general executive warrant, to search for evidence of the utterance of libel. Among the reasons given for that decision were these:"It is very certain, that the law obligeth no man to accuse himself; because the necessary means of compelling self-accusation, falling upon the innocent as well as the guilty, would be both cruel and unjust; and it should seem that search for evidence is disallowed upon the same principle. There, too, the innocent would be confounded with the guilty."Id. at col. 1073. Page 359 U. S. 364 These were not novel pronouncements to the colonists. A few years earlier, in Boston, revenue officers had been authorized to sue Writs of Assistance, empowering them to search suspected places, including private houses, for smuggled goods. In 1761, the validity of the use of the Writs was contested in the historic proceedings in Boston. James Otis attacked the Writ of Assistance because its use placed "the liberty of every man in the hands of every petty officer." [Footnote 2] His powerful argument so impressed itself first on his audience and later on the people of all the Colonies that President Adams was in retrospect moved to say that "American Independence was then and there born." [Footnote 3] Many years later, this Court, in Boyd v. United States, 116 U. S. 616, carefully reviewed this history and pointed out, as did Lord Camden in Entick v. Carrington, that". . . the 'unreasonable searches and seizures' condemned in the Fourth Amendment are almost always made for the purpose of compelling a man to give Page 359 U. S. 365 evidence against himself, which in criminal cases is condemned in the Fifth Amendment; and compelling a man 'in a criminal case to be a witness against himself,' which is condemned in the Fifth Amendment, throws light on the question as to what is an 'unreasonable search and seizure' within the meaning of the Fourth Amendment."116 U.S. at 116 U. S. 633.Against this background, two protections emerge from the broad constitutional proscription of official invasion. The first of these is the right to be secure from intrusion into personal privacy, the right to shut the door on officials of the state unless their entry is under proper authority of law. The second, and intimately related protection, is self-protection: the right to resist unauthorized entry which has as its design the securing of information to fortify the coercive power of the state against the individual, information which may be used to effect a further deprivation of life or liberty or property. Thus, evidence of criminal action may not, save in very limited and closely confined situations, be seized without a judicially issued search warrant. It is this aspect of the constitutional protection to which the quoted passages from Entick v. Carrington and Boyd v. United States refer. Certainly it is not necessary to accept any particular theory of the interrelationship of the Fourth and Fifth Amendments [Footnote 4] to realize what history makes plain -- that it was on the issue of the right to be secure from searches for evidence to be used in criminal prosecutions or for forfeitures that the great battle for fundamental liberty was fought. While these concerns for individual rights were the historic impulses behind the Fourth Amendment and its analogues in state constitutions, the application Page 359 U. S. 366 of the Fourth Amendment and the extent to which the essential right of privacy is protected by the Due Process Clause of the Fourteenth Amendment are, of course, not restricted within these historic bounds.But giving the fullest scope to this constitutional right to privacy, its protection cannot be here invoked. The attempted inspection of appellant's home is merely to determine whether conditions exist which the Baltimore Health Code proscribes. If they do, appellant is notified to remedy the infringing conditions. No evidence for criminal prosecution is sought to be seized. Appellant is simply directed to do what he could have been ordered to do without any inspection, and what he cannot properly resist, namely, act in a manner consistent with the maintenance of minimum community standards of health and wellbeing, including his own. Appellant's resistance can only be based not on admissible self-protection, but on a rarely voiced denial of any official justification for seeking to enter his home. The constitutional "liberty" that is asserted is the absolute right to refuse consent for an inspection designed and pursued solely for the protection of the community's health, even when the inspection is conducted with due regard for every convenience of time and place.The power of inspection granted by the Baltimore City Code is strictly limited, more exacting than the analogous provisions of many other municipal codes. Valid grounds for suspicion of the existence of a nuisance must exist. Certainly the presence of a pile of filth in the back yard combined with the rundown condition of the house gave adequate grounds for such suspicion. The inspection must be made in the daytime. Here was no midnight knock on the door, but an orderly visit in the middle of the afternoon with no suggestion that the hour was inconvenient. Moreover, the inspector has no power to force Page 359 U. S. 367 entry and did not attempt it. A fine is imposed for resistance, but officials are not authorized to break past the unwilling occupant.Thus, not only does the inspection touch, at most, upon the periphery of the important interests safeguarded by the Fourteenth Amendment's protection against official intrusion, but it is hedged about with safeguards designed to make the least possible demand on the individual occupant, and to cause only the slightest restriction on his claims of privacy. Such a demand must be assessed in the light of the needs which have produced it.Inspection without a warrant, as an adjunct to a regulatory scheme for the general welfare of the community and not as a means of enforcing the criminal law, has antecedents deep in our history. For more than 200 years, Maryland has empowered its officers to enter upon ships, carriages, shops, and homes in the service of the common welfare. In pre-revolutionary days, trade, on which the viability of the struggling Colonies depended, was of primary concern. Thus, at a time when the tobacco trade was a vital part of Maryland's economy, inspections of ships and carriages without a warrant could be made to enforce uniform standards for packing and shipping tobacco. [Footnote 5] Similarly, suspected evasion of import Page 359 U. S. 368 duties on liquor and other goods could be found out by inspection of stores and homes. [Footnote 6] Generally, the power of entry was carefully limited, requiring that ground for suspicion must exist and that the inspection be conducted between "the rising and the setting of the sun." [Footnote 7]In 1776, the newly independent State of Maryland incorporated, as part of its basic Declaration of Rights, the principle"That all warrants, without oath or affirmation, to search suspected places, or to seize any person or property, are grievious and oppressive; and all general warrants -- to search suspected places, or to apprehend suspected persons, without naming or describing the place, or the person in special -- are illegal, and ought not to be granted."See 3 Thorpe, Federal and State Constitutions (1909) 1688.This provision was a product of the same history of abuse and protest that gave birth to the Fourth Amendment. [Footnote 8] It remains today as an essential part of Maryland's Constitution. Yet the years following its proclamation saw not a decline, but a marked increase, in statutory authorization for inspection of the citizen's home. Not only were the old regulations continued, but the power of Page 359 U. S. 369 inspection was extended to new community concerns. In 1782, Commissioners were empowered to "enter upon the lots, grounds, and possessions, of any person or persons . . ." in order to regulate and keep in repair the common sewerage systems. [Footnote 9] Five years later, similar entries on private property were allowed for the purpose of keeping the public roads in repair. [Footnote 10] Typical of the regulatory statutes enacted in this period was an act permitting the clerk of the market"to examine and weigh all such bread, and to seize, for the use of the poor of the county, all such as they shall find deficient in weight or fineness, and not baked or marked as aforesaid. . . . [Footnote 11]"The penalty for resisting the entry of the clerk was "five pounds current money." And so, when, in 1801, the power of inspection without a warrant became an instrument of the enforcement of the Baltimore health laws, no novel or untried procedures were being invoked. The ordinance now challenged derives from this 1801 ordinance. It provided:"And be it enacted and ordained, That when, and as often as the said commissioners of health, or any of them, shall have cause to suspect a nuisance dangerous to the health of the city exists in any house, cellar or inclosure shut up from public view, they, or any one of them, may demand entry therein in the day time for the purpose of examining the same, and if the owner or occupier thereof shall refuse or delay Page 359 U. S. 370 to open the same and to admit a free examination, he shall forfeit and pay for every such refusal the sum of twenty dollars, for the use of the corporation. [Footnote 12]"From the passage of this ordinance to the present, the prevention and abatement of "nuisances" on private property has been one of the chief concerns of the Baltimore City Health Department. [Footnote 13] In the latter half of the nineteenth century, in the years following the ratification of the Fourteenth Amendment, thousands upon thousands of inspections were made under authority of this ordinance. [Footnote 14] Thus, the system of inspection here under attack, having its beginning in Maryland's colonial history, has been an integral part of the enforcement of Baltimore's health laws for more than a century and a half. The legal significance of such a long and consistent history of state practice has been illuminated for us by Mr. Justice Holmes:"The Fourteenth Amendment, itself a historical product, did not destroy history for the States and substitute mechanical compartments of law all exactly alike. If a thing has been practised for two hundred years by common consent, it will need a strong case for the Fourteenth Amendment to affect it. . . ."Jackman v. Rosenbaum Co., 260 U. S. 22, 260 U. S. 31. (As to the constitutional significance of a "time-honored procedure," Murray's Lessee v. Hoboken Land and Improvement Co., 18 How. 272, and Ownbey v. Morgan, 256 U. S. 94.) Page 359 U. S. 371 Of course, this wise reminder, that what free people have found consistent with their enjoyment of freedom for centuries is hardly to be deemed to violate due process, does not freeze due process within the confines of historical facts or discredited attitudes. [Footnote 15]"It is of the very nature of a free society to advance in its standards of what is deemed reasonable and right. Representing, as it does, a living principle, due process is not confined within a permanent catalogue of what may at a given time be deemed the limits or the essentials of fundamental rights."Wolf v. Colorado, 338 U. S. 25, 338 U. S. 27.The power here challenged rests not only on a long history of its exercise. It is a power which was continually strengthened and applied to wider concerns through those very years when the right of individuals to be free from peremptory official invasion received increasing legislative and judicial protection. Nor is this a situation where a new body of knowledge displaces previous premises of action. There is a total want of important modification in the circumstances or the structure of society which calls for a disregard of so much history. On the contrary, the problems which gave rise to these ordinances have multiplied manifold, as have the difficulties of enforcement. The need to maintain basic, minimal standards of housing, to prevent the spread of disease and of that pervasive breakdown in the fiber of a people which is produced by slums and the absence of the barest essentials of civilized living, has mounted to a major concern of American government. The growth of cities, the crowding of populations, the increased awareness of the responsibility of the state for the living conditions of its citizens, all have combined to create problems of the Page 359 U. S. 372 enforcement of minimum standards of far greater magnitude than the writers of these ancient inspection laws ever dreamed. Time and experience have forcefully taught that the power to inspect dwelling places, either as a matter of systematic area-by-area search or, as here, to treat a specific problem, is of indispensable importance to the maintenance of community health; a power that would be greatly hobbled by the blanket requirement of the safeguards necessary for a search of evidence of criminal acts. The need for preventive action is great, and city after city has seen this need and granted the power of inspection to its health officials; and these inspections are apparently welcomed by all but an insignificant few. [Footnote 16] Certainly, the nature of our society has not vitiated the need for inspections first thought necessary 158 years ago, nor has experience revealed any abuse or inroad on freedom in meeting this need by means that history and dominant public opinion have sanctioned.That there is "a total unlikeness" between "official acts and proceedings," Boyd v. United States, 116 U. S. 616, 116 U. S. 624, for which the legal protection of privacy requires a Page 359 U. S. 373 search warrant under the Fourteenth Amendment, and the situation now under consideration is laid bare by the suggestion that the kind of an inspection by a health official with which we are concerned may be satisfied by what is, in effect, a synthetic search warrant, an authorization "for periodic inspections." If a search warrant be constitutionally required, the requirement cannot be flexibly interpreted to dispense with the rigorous constitutional restrictions for its issue. A loose basis for granting a search warrant for the situation before us is to enter by way of the back door to a recognition of the fact that, by reason of their intrinsic elements, their historic sanctions, and their safeguards, the Maryland proceedings requesting permission to make a search without intruding when permission is denied do not offend the protection of the Fourteenth Amendment.In light of the long history of this kind of inspection and of modern needs, we cannot say that the carefully circumscribed demand which Maryland here makes on appellant's freedom has deprived him of due process of law.Affirmed

U.S. Supreme CourtFrank v. Maryland, 359 U.S. 360 (1959)Frank v. MarylandNo. 278Argued March 5, 1959Decided May 4, 1959359 U.S. 360SyllabusA Baltimore City health inspector seeking the source of a rat infestation discovered evidence of such an infestation in the rear of appellant's home, and, having no search warrant, requested appellant's permission to inspect his basement in the daytime. For refusing such permission, appellant was convicted and fined for a violation of § 120 of Art. 12 of the Baltimore City Code, which provides that"Whenever the Commissioner of Health shall have cause to suspect that a nuisance exists in any house, cellar, or enclosure, he may demand entry therein in the day time, and if the owner or occupier shall refuse or delay to open the same and admit a free examination, he shall forfeit and pay for every such refusal the sum of Twenty Dollars."Held: Section 120 is valid, and appellant's conviction for resisting an inspection of his house without a warrant did not violate the Due Process Clause of the Fourteenth Amendment. Pp. 359 U. S. 361-373.Affirmed. Page 359 U. S. 361

1963_223

MR. JUSTICE CLARK delivered the opinion of the Court.Following a trial by jury, petitioner was convicted of violating 18 U.S.C. § 2315 [Footnote 1] by knowingly receiving, concealing and storing 81 stolen fur pieces, the fur pieces having been transported in interstate commerce and having a value exceeding $5,000. The Court of Appeals sustained the conviction despite petitioner's objections that the evidence was not sufficient to support the verdict; that the fur garments should have been excluded from evidence because they were seized on the authority of a search warrant supported by a deficient affidavit; and that the names of certain confidential informants referred to in the affidavit should have been disclosed. 316 F.2d 589. We granted certiorari, 375 U.S. 812, and affirm the judgment.IThe search warrant under attack was issued by the United States Commissioner on the strength of an affidavit dated March 22, 1962, and signed by Marlin Moore, a Special Agent of the Federal Bureau of Investigation. The affidavit stated that Moore had reason to believe that approximately 80 fur stoles and jackets, taken in a burglary in Mountain Brook, Alabama, and worth about $40,000, were concealed in the basement of a single family residence at 3117 West Jarvis Avenue in Chicago. Page 376 U. S. 530Moore supported this allegation with statements that L. Dean Paarmann, a Special Agent of the Birmingham, Alabama, Office of the FBI, informed Moore that on February 10, 1962, 82 mink, otter, and beaver stoles and jackets (but no full-length coats), worth approximately $42,044, were stolen in Mountain Brook, Alabama, and that, on March 16, 1962, a confidential informant who had furnished reliable information in the past told Moore that, during the previous week, he saw approximately 75 to 80 mink, otter and beaver stoles and jackets (but no full-length coats) in the basement of the home of Samuel Rugendorf at 3117 West Jarvis Avenue, Chicago. The labels had been removed, and the informant was told that the furs were stolen.Moore further supported the allegation with the following statements: FBI Special Agent McCormick advised affiant that a confidential informant whom the FBI had found to be reliable told McCormick that Frank Schweihs of Chicago, and others, committed the Alabama robbery; McCormick told the affiant that, on or about March 1, 1962, James Kelleher, a Chicago police officer, said to McCormick "that he saw FRANK SCHWEIHS at RUGGENDORF [sic] BROTHERS MEAT MARKET, managed by SAMUEL RUGGENDORF [sic] . . . ;" further, Agent McCORMICK advised this affiant that another confidential informant who has furnished reliable information to the Federal Bureau of Investigation in the past told McCORMICK that LEO RUGGENDORF [sic] was a fence for FRANK SCHWEIHS; that SAMUEL RUGGENDORF [sic] was LEO RUGGENDORF's [sic] brother, and was associated in the meat business with his brother.The affidavit also stated that another FBI Special Agent, J. J. Oitzinger, told the affiant that another confidential informant who had supplied the FBI with reliable information in the past advised Oitzinger that Frank Page 376 U. S. 531 Schweihs, Tony Panzica, and Mike Condic were accomplished burglars who disposed of the proceeds of their burglaries through Leo Rugendorf.Finally, the affidavit alleged that, upon checking the informant's description of the furs seen at 3117 West Jarvis Avenue, affiant found that the only reported burglary in the United States in the previous six months involving furs of that description and value was the one occurring at Mountain Brook, Alabama.Pursuant to the search warrant based on this affidavit, a search was made and 81 furs were found in the basement of petitioner's residence. Fifty-nine of these furs had been stolen in Mountain Brook, and the other 22, in Shreveport, Louisiana. Prior to trial, the trial court heard testimony on petitioner's motion, under Rule 41(e) of the Federal Rules of Criminal Procedure, [Footnote 2] to suppress the use of the seized furs as evidence. The trial court denied the motion insofar as it challenged the legal sufficiency of the affidavit, but reserved ruling on the truthfulness of the affidavit. During the trial, another hearing was held on the reserved aspect of the motion to suppress, and the motion was denied. Also denied was a motion to require the Government to disclose the names of the confidential informants referred to in the affidavit.IIPetitioner attacks the validity of the search warrant. This Court has never passed directly on the extent to Page 376 U. S. 532 which a court may permit such examination when the search warrant is valid on its face and when the allegations of the underlying affidavit establish "probable cause"; however, assuming, for the purpose of this decision, that such attack may be made, we are of the opinion that the search warrant here is valid. Petitioner contends that probable cause did not exist, because the only relevant recitations in the affidavit were the one informant's statements that he saw the furs in petitioner's basement and that he was told that they were stolen. However, the informant's detailed description of the furs, including number and type, closely resembled Special Agent Paarmann's description of the furs stolen in Alabama. The affiant checked the burglary report records and found the Alabama burglary to be the only recent one in the United States involving furs of the description and number that the informant saw in petitioner's basement. In addition, the affidavit alleged that Leo and Samuel Rugendorf were brothers, and that Leo was a fence for professional burglars. Although one of the informations who gave the latter information added, incorrectly, that Samuel Rugendorf was associated with Leo in the meat business, [Footnote 3] there was direct information from another informant of the FBI that Leo was a fence, and nothing was shown to prove this untrue. The factual inaccuracies depended upon by petitioner to destroy probable cause -- i.e., the allegations in the affidavit that petitioner was the manager of Rugendorf Brothers Meat Market and that he was associated with his brother Leo in the meat business -- were of only peripheral relevancy to the showing of probable cause, and, not being within the personal knowledge of the affiant, did not go to the integrity of the affidavit. Page 376 U. S. 533We believe that there was substantial basis for the Commissioner to conclude that stolen furs were probably in the petitioner's basement. No more is required. As we said in Jones v. United States, 362 U. S. 257, 362 U. S. 271 (1960):"We conclude . . . that hearsay may be the basis for a warrant. We cannot say that there was so little basis for accepting the hearsay . . . that the Commissioner acted improperly. . . . He might have found the affidavit insufficient and withheld his warrant. But there was substantial basis for him to conclude that narcotics were probably present in the apartment, and that is sufficient."Petitioner also contends that the withholding of the identities of the informants was a sufficient ground to require suppression of the evidence. But, in Jones, supra, we said that,"as hearsay alone does not render an affidavit insufficient, the Commissioner need not have required the informants . . . to be produced . . . so long as there was a substantial basis for crediting the hearsay."At 362 U. S. 272. Petitioner's only challenges to the veracity of the affidavit are the two inaccurate facts mentioned above. Since the erroneous statements that petitioner was the manager of Rugendorf Brothers Meat Market and was associated with Leo in the meat business were not those of the affiant, [Footnote 4] they fail to show that the affiant was in bad faith or that he made any misrepresentations to the Commissioner in securing the warrant. Page 376 U. S. 534IIIPetitioner also asserts that he was entitled to the name of the informer who reported seeing the furs in his basement in order to defend himself at trial on the merits. This claim was not properly raised in the trial court nor passed upon there, and, accordingly, must be denied here. On two occasions -- once prior to and the other during the trial -- petitioner urged his motion to suppress the evidence as to the furs, contending that there were "factual errors" in the affidavit supporting the search warrant. It was solely in support of this motion -- not on the merits -- that petitioner requested all of the informants' names. This is made clear by petitioner's motion for new trial:"9. The court erred in overruling the defendant's motion for the government to reveal the names of the informers when such information was necessary to the constitutional rights of the defendant in pursuing his motion to suppress the evidence."(Emphasis added.) He relied entirely on suppression, which, if successful, would have ended the case. Failing in this, petitioner asserted, for the first time, in his reply brief in the Court of Appeals that the name of the single informant who saw the furs was vital both for the suppression hearing and for the defense at trial, because the informant alone knew whether he "participated with persons other than the defendant" in placing the furs in the basement. Apparently this was an attempt to bring the facts of the case within Roviaro v. United States, 353 U. S. 53 (1957), where the informant had played a direct and prominent part, as the sole participant with the accused, in the very offense for which the latter was convicted. But there was not even an intimation of such a situation at the trial here. The necessity for disclosure depends upon"the particular circumstances of each case, taking into consideration Page 376 U. S. 535 the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors."353 U. S. 353 U.S. 53, 353 U. S. 62. Petitioner did not develop any such criteria with reference to the merits of the case. On the contrary, a careful examination of the whole record shows that he requested the informers' names only in his attack on the affidavit supporting the search warrant. Having failed to develop the criteria of Roviaro necessitating disclosure on the merits, we cannot say on this record that the name of the informant was necessary to his defense. All petitioner's demands for identification of the informants were made during the hearings on the motion to suppress, and were related to that motion. [Footnote 5] Never did petitioner's counsel indicate how the informants' testimony could help establish petitioner's innocence.Nor do we believe that the trial court erred in refusing to have the Government disclose the exact date during the week preceding March 16 when the informant saw the Page 376 U. S. 536 furs in the petitioner's basement. It is difficult to see how that date could be useful to petitioner's defense, since the crucial date in the indictment was March 22, and there is no indication that the informant had any knowledge of any events occurring on that date. Petitioner's theory is that, if he can find out the date, he may be able to show that he and his wife were away from home at the time when the informant saw the furs, thereby creating an inference that someone else let the informant in and that petitioner did not know of the furs. However, the particular date could not have been of material help to petitioner, as both he and his wife were away from home a major portion of nearly every day during the period in question.IVAs to the sufficiency of the evidence, it was undisputed that 81 stolen furs were found in the basement of petitioner's home. The furs were hanging in a closet along with a fur piece admittedly owned by Mrs. Rugendorf. Petitioner's defense was that the furs were placed in the closet without his knowledge while he and his wife were vacationing in Florida, and that neither he nor his wife looked into the closet after their return until the officers executed the search warrant on March 22. Petitioner's brother Leo, petitioner's sister, his son, and a neighbor all had keys to his house. Both petitioner and his wife pointed to Leo as the guilty party, but neither Leo nor the other relatives who had keys were called as witnesses. The neighbor, who was called to testify, denied putting the furs in the basement or permitting any other person to use the key.As early as 1896, this Court dealt with such situations. In Wilson v. United States, 162 U. S. 613, Chief Justice Fuller held for a unanimous Court that"[p]ossession of the fruits of crime, recently after its commission, justifies the inference that the possession is guilty possession, and, Page 376 U. S. 537 though only prima facie evidence of guilt, may be of controlling weight unless explained by the circumstances or accounted for in some way consistent with innocence."At 162 U. S. 619. Here, it was stipulated that 59 of the furs found in the petitioner's basement were stolen from a fur store in Mountain Brook, Alabama, on February 10, 1962. They were found in a closet opening off a regularly used recreation room. In the same closet was Mrs. Rugendorf's fur piece. Leo Rugendorf, petitioner's brother, was a known receiver of stolen goods, and was seen at the home while the Rugendorfs were in Florida. Petitioner testified at trial that Leo had borrowed a key before petitioner went to Florida, and that Leo had not yet returned it. In rebuttal, an FBI agent testified that petitioner told him that Leo returned the key soon after the petitioner returned from Florida. In some other respects, the testimony of both petitioner and his wife conflicted with the rebuttal testimony of the FBI agents. Apparently the jury simply did not believe the explanation of petitioner and his wife. It may be that the jury's credulity was stretched too far; or perhaps the failure of the defense to call Leo Rugendorf and the other kinsmen, to whom they had given keys to the home, appeared strange, especially so since the neighbor was called to testify about his use of a key. In any event, a prima facie case was made out by the stipulation and the presence of the furs in petitioner's home. We cannot say that this was insufficient.Affirmed

U.S. Supreme CourtRugendorf v. United States, 376 U.S. 528 (1964)Rugendorf v. United StatesNo. 223Argued February 27, 1964Decided March 30, 1964376 U.S. 528SyllabusPetitioner was convicted of knowingly concealing stolen fur garments in violation of 18 U.S. C. § 2315. The stolen furs were found in the basement of his home pursuant to a search warrant issued on the strength of an affidavit factually inaccurate in two respects and based partly on hearsay statements of confidential informants. Petitioner's motion to suppress the introduction in evidence of the seized furs was denied by the trial court.Held:1. The search warrant was valid as long as it provided a substantial basis to support the conclusion that the stolen goods were probably in petitioner's basement. Pp. 376 U. S. 531-533.(a) Factual inaccuracies, not going to the integrity of the affidavit, do not destroy probable cause for a search. Pp. 376 U. S. 532-533.(b) Hearsay, if it provides sufficient evidence of probable cause, justifies the issuance of a search warrant. Jones v. United States, 362 U. S. 257, followed. P. 376 U. S. 533.2. Petitioner's claim that he was entitled to the informant's name in order to defend himself at the trial must be rejected where first raised in petitioner's reply brief on appeal, his previous request having been confined to support of his motion to suppress the evidence. Pp. 376 U. S. 534-536.3. The evidence was sufficient to support the verdict. Pp. 376 U. S. 536-537.316 F.2d 589, affirmed. Page 376 U. S. 529

2002_01-653

SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O'CONNOR, KENNEDY, SOUTER, THOMAS, and GINSBURG, JJ., joined, and in which STEVENS, J., joined as to Parts I and II. STEVENS, J., filed an opinion concurring in part and concurring in the judgment, post, p. 308. BREYER, J., filed a dissenting opinion, post, p. 310.Acting Solicitor General Clement argued the cause for petitioner Federal Communications Commission in No. 01653. With him on the briefs were Deputy Solicitor General Wallace, Jeffrey A. Lamken, William Kanter, Jacob M. Lewis, John A. Rogovin, Daniel M. Armstrong, and Joel Marcus. Jonathan S. Franklin argued the cause for petitioners Arctic Slope Regional Corp. et al. in No. 01-657. With him on the briefs was Lorane F. Hebert.Donald B. Verrilli, Jr., argued the cause for respondents in both cases. With him on the briefs were Ian Heath Gershengorn, William M. Hohengarten, Thomas G. Hungar, Douglas R. Cox, Miguel A. Estrada, G. Eric Brunstad, Jr., and Deborah L. Schrier-Rape.Laurence H. Tribe argued the cause and filed a brief for Creditors NextWave Communications, Inc., as amici curiae urging affirmance. With him on the brief were Charles Fried and Elizabeth Warren.tJUSTICE SCALIA delivered the opinion of the Court.In these cases, we decide whether § 525 of the Bankruptcy Code, 11 U. S. C. § 525, prohibits the Federal Communications Commission (FCC or Commission) from revoking licenses held by a debtor in bankruptcy upon the debtor's failure to make timely payments owed to the Commission for purchase of the licenses.tBriefs of amici curiae urging affirmance were filed for Airadigm Communications, Inc., by Richard P. Bress and James F. Rogers; for Urban Comm-North Carolina, Inc., et al. by Charles J. Cooper, David H. Thompson, Preben Jensen, and Charles E. Simpson; for Professor Kathryn R. Heidt, pro se; and for Senator Patrick Leahy et al. by Walter Dellinger and Jonathan D. Hacker.296296 FCC v. NEXTWAVE PERSONAL COMMUNICATIONS INC.IIn 1993, Congress amended the Communications Act of 1934 to authorize the FCC to award spectrum licenses "through a system of competitive bidding." 48 Stat. 1085, as amended, 107 Stat. 387, 47 U. S. C. § 309(j)(1). It directed the Commission to "promot[e] economic opportunity and competition" and "avoi[d] excessive concentration of licenses" by "disseminating licenses among a wide variety of applications, including small businesses [and] rural telephone companies." § 309(j)(3)(B). In order to achieve this goal, Congress directed the FCC to "consider alternative payment schedules and methods of calculation, including lump sums or guaranteed installment payments ... or other schedules or methods .... " § 309(j)(4)(A).The FCC decided to award licenses for broadband personal communications services through simultaneous, multipleround auctions. In re Implementation of Section 309(j) of the Communications Act-Competitive Bidding, 9 FCC Rcd. 2348, ~~ 54, 68 (1994). In accordance with §§ 309(j) (3)(B) and (4)(A), it restricted participation in two of the six auction blocks (Blocks "c" and "F") to small businesses and other designated entities with total assets and revenues below certain levels, and it allowed the successful bidders in these two blocks to pay in installments over the term of the license. 47 CFR § 24.709(a)(1) (1997).Respondents NextWave Personal Communications, Inc., and NextWave Power Partners, Inc. (both wholly owned subsidiaries of NextWave Telecom, Inc., and hereinafter jointly referred to as respondent NextWave), participated, respectively, in the FCC's "C-Block" and "F-Block" auctions. NextWave was awarded 63 C-Block licenses on winning bids totaling approximately $4.74 billion, and 27 F-Block licenses on winning bids of approximately $123 million. In accordance with FCC regulations, NextWave made a downpayment on the purchase price, signed promissory notes for the balance, and executed security agreements that the FCC per-297fected by filing under the Uniform Commercial Code. The security agreements gave the Commission a first "lien on and continuing security interest in all of the Debtor's rights and interest in [each] License." Security Agreement between NextWave and FCC ~ 1 (Jan. 3, 1997),2 App. to Pet. for Cert. 402a. In addition, the licenses recited that they were "conditioned upon the full and timely payment of all monies due pursuant to ... the terms of the Commission's installment plan as set forth in the Note and Security Agreement executed by the licensee," and that "[f]ailure to comply with this condition will result in the automatic cancellation of this authorization." Radio Station Authorization for Broadband PCS (issued to NextWave Jan. 3, 1997),2 App. to Pet. for Cert. 388a.After the C-Block and F-Block licenses were awarded, several successful bidders, including NextWave, experienced difficulty obtaining financing for their operations and petitioned the Commission to restructure their installmentpayment obligations. See 12 FCC Rcd. 16436, ~ 11 (1997). The Commission suspended the installment payments, 12 FCC Rcd. 17325 (1997); 13 FCC Rcd. 1286 (1997), and adopted several options that allowed C-Block licensees to surrender some or all of their licenses for full or partial forgiveness of their outstanding debt. See 12 FCC Rcd. 16436, ~ 6; 13 FCC Rcd. 8345 (1998). It set a deadline of June 8, 1998, for licensees to elect a restructuring option, and of October 29, 1998, as the last date to resume installment payments. 13 FCC Rcd. 7413 (1998).On June 8, 1998, after failing to obtain stays of the election deadline from the Commission or the Court of Appeals for the District of Columbia Circuit, NextWave filed for Chapter 11 bankruptcy protection in New York. See In re NextWave Personal Communications, Inc., 235 B. R. 263, 267 (Bkrtcy. Ct. SDNY 1998). It suspended payments to all creditors, including the FCC, pending confirmation of a reorganization plan. NextWave initiated an adversary proceed-298298 FCC v. NEXTWAVE PERSONAL COMMUNICATIONS INC.ing in the Bankruptcy Court, alleging that its $4.74 billion indebtedness on the C-Block licenses was avoidable as a "fraudulent conveyance" under § 544 of the Bankruptcy Code, 11 U. S. C. § 544, because, by the time the Commission actually conveyed the licenses, their value had declined from approximately $4.74 billion to less than $1 billion. The Bankruptcy Court agreed l-ruling in effect that the company could keep its C-Block licenses for the reduced price of $1.02 billion-and the District Court affirmed. NextWave Personal Communications, Inc. v. FCC, 241 B. R. 311, 318319 (SDNY 1999). The Court of Appeals for the Second Circuit reversed, holding that, although the Bankruptcy Court might have jurisdiction over NextWave's underlying debts to the FCC, it could not change the conditions attached to NextWave's licenses. In re NextWave Personal Communications, Inc., 200 F.3d 43, 55-56 (1999) (per curiam). The Second Circuit also held that since, under FCC regulations, "NextWave's obligation attached upon the close of the auction," there had been no fraudulent conveyance by the FCC acting in its capacity as creditor. Id., at 58.Following the Second Circuit's decision, NextWave prepared a plan of reorganization that envisioned payment of a single lump sum to satisfy the entire remaining $4.3 billion obligation for purchase of the C-Block licenses, including interest and late fees. The FCC objected to the plan, asserting that NextWave's licenses had been canceled automatically when the company missed its first payment deadline in October 1998. The Commission simultaneously announced that NextWave's licenses were "available for auction under the automatic cancellation provisions" of the FCC's regulations. Public Notice, Auction ofC and F Block Broadband PCS Licenses, 15 FCC Rcd. 693 (2000). NextWave sought1 We do not reach the merits of the determination that the licenses should be valued as of the time they were conveyed, rather than as of the time NextWave won the auction entitling it to conveyance.299emergency relief in the Bankruptcy Court, which declared the FCC's cancellation of respondent's licenses "null and void" as a violation of various provisions of the Bankruptcy Code. In re NextWave Personal Communications, Inc., 244 B. R. 253, 257-258 (Bkrtcy. Ct. SDNY 2000). Once again, the Court of Appeals for the Second Circuit reversed. In re Federal Communications Commission, 217 F.3d 125 (2000). Granting the FCC's petition for a writ of mandamus, the Second Circuit held that "[e]xclusive jurisdiction to review the FCC's regulatory action lies in the courts of appeals" under 47 U. S. C. § 402, and that since the reauction decision was regulatory, proclaiming it to be arbitrary was "outside the jurisdiction of the bankruptcy court." 217 F. 3d, at 139, 136. The Second Circuit noted, however, that "NextWave remains free to pursue its challenge to the FCC's regulatory acts." Id., at 140.NextWave filed a petition with the FCC seeking reconsideration of the license cancellation, denial of which is the gravamen of the cases at bar. In the Matter of Public Notice DA 00-.1,9 Auction of C and F Block Broadband PCS Licenses, Order on Reconsideration, 15 FCC Red. 17500 (2000). NextWave appealed that denial to the Court of Appeals for the D. C. Circuit pursuant to 47 U. S. C. § 402(b), asserting that the cancellation was arbitrary and capricious, and contrary to law, in violation of the Administrative Procedure Act, 5 U. S. C. § 706, and the Bankruptcy Code. The Court of Appeals agreed, holding that the FCC's cancellation of NextWave's licenses violated 11 U. S. C. § 525: "Applying the fundamental principle that federal agencies must obey all federal laws, not just those they administer, we conclude that the Commission violated the provision of the Bankruptcy Code that prohibits governmental entities from revoking debtors' licenses solely for failure to pay debts dischargeable in bankruptcy." 254 F.3d 130, 133 (2001). We granted certiorari. 535 U. S. 904 (2002).300300 FCC v. NEXTWAVE PERSONAL COMMUNICATIONS INC.IIThe Administrative Procedure Act requires federal courts to set aside federal agency action that is "not in accordance with law," 5 U. S. C. § 706(2)(A)-which means, of course, any law, and not merely those laws that the agency itself is charged with administering. See, e. g., Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 413-414 (1971) ("In all cases agency action must be set aside if the action was 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law' or if the action failed to meet statutory, procedural, or constitutional requirements"). Respondent contends, and the Court of Appeals for the D. C. Circuit held, that the FCC's revocation of its licenses was not in accordance with § 525 of the Bankruptcy Code.Section 525(a) provides, in relevant part:"[A] governmental unit may not ... revoke ... a license ... to ... a person that is ... a debtor under this title ... solely because such ... debtor ... has not paid a debt that is dischargeable in the case under this title .... " 22 The full text of 11 U. S. C. § 525(a) reads as follows:"Except as provided in the Perishable Agricultural Commodities Act, 1930, the Packers and Stockyards Act, 1921, and section 1 of the Act entitled 'An Act making appropriations for the Department of Agriculture for the fiscal year ending June 30, 1944, and for other purposes,' approved July 12, 1943, a governmental unit may not deny, revoke, suspend, or refuse to renew a license, permit, charter, franchise, or other similar grant to, condition such a grant to, discriminate with respect to such a grant against, deny employment to, terminate the employment of, or discriminate with respect to employment against, a person that is or has been a debtor under this title or a bankrupt or a debtor under the Bankruptcy Act, or another person with whom such bankrupt or debtor has been associated, solely because such bankrupt or debtor is or has been a debtor under this title or a bankrupt or debtor under the Bankruptcy Act, has been insolvent before the commencement of the case under this title, or during the case but before the debtor is granted or denied a discharge, or has not paid a debt that is dischargeable in the case under this title or that was discharged under the Bankruptcy Act."301No one disputes that the Commission is a "governmental unit" that has "revoke[dJ" a "license," nor that NextWave is a "debtor" under the Bankruptcy Act. Petitioners argue, however, that the FCC did not revoke respondent's licenses "solely because" of nonpayment, and that, in any event, NextWave's obligations are not "dischargeable" "debt[sJ" within the meaning of the Bankruptcy Code. They also argue that a contrary interpretation would unnecessarily bring § 525 into conflict with the Communications Act. We find none of these contentions persuasive, and discuss them in turn.AThe FCC has not denied that the proximate cause for its cancellation of the licenses was NextWave's failure to make the payments that were due. It contends, however, that § 525 does not apply because the FCC had a "valid regulatory motive" for the cancellation. Brief for Petitioners Arctic Slope Regional Corp. et aL 19; see Brief for Petitioner FCC 17. In our view, that factor is irrelevant. When the statute refers to failure to pay a debt as the sole cause of cancellation ("solely because"), it cannot reasonably be understood to include, among the other causes whose presence can preclude application of the prohibition, the governmental unit's motive in effecting the cancellation. Such a reading would deprive § 525 of all force. It is hard to imagine a situation in which a governmental unit would not have some further motive behind the cancellation-assuring the financial solvency of the licensed entity, e. g., Perez v. Campbell, 402 U. S. 637 (1971); In re The Bible Speaks, 69 B. R. 368, 374 (Bkrtcy. Ct. Mass. 1987), or punishing lawlessness, e. g., In re Adams, 106 B. R. 811, 827 (Bkrtcy. Ct. NJ 1989); In re Colon, 102 B. R. 421, 428 (Bkrtcy. Ct. ED Pa. 1989), or even (quite simply) making itself financially whole. Section 525 means nothing more or less than that the failure to pay a dischargeable debt must alone be the proximate cause of the cancellation-the act or event that triggers the agency's decision to cancel,302302 FCC v. NEXTWAVE PERSONAL COMMUNICATIONS INC.whatever the agency's ultimate motive in pulling the trigger may be.Some may think (and the opponents of § 525 undoubtedly thought) that there ought to be an exception for cancellations that have a valid regulatory purpose. Besides the fact that such an exception would consume the rule, it flies in the face of the fact that, where Congress has intended to provide regulatory exceptions to provisions of the Bankruptcy Code, it has done so clearly and expressly, rather than by a device so subtle as denominating a motive a cause. There are, for example, regulatory exemptions from the Bankruptcy Code's automatic stay provisions. 11 U. S. C. § 362(b)(4). And even § 525(a) itself contains explicit exemptions for certain Agriculture Department programs, see n. 2, supra. These latter exceptions would be entirely superfluous if we were to read § 525 as the Commission proposes-which means, of course, that such a reading must be rejected. See United States v. Nordic Village, Inc., 503 U. S. 30, 35-36 (1992).BPetitioners contend that NextWave's license obligations to the Commission are not "debt[s] that [are] dischargeable" in bankruptcy. 11 U. S. C. § 525(a). First, the FCC argues that "regulatory conditions like the full and timely payment condition are not properly classified as 'debts'" under the Bankruptcy Code. Brief for Petitioner FCC 33. In its view, the "financial nature of a condition" on a license "does not convert that condition into a debt." Ibid. This is nothing more than a retooling of petitioners' recurrent theme that "regulatory conditions" should be exempt from § 525. No matter how the Commission casts it, the argument loses. Under the Bankruptcy Code, "debt" means "liability on a claim," 11 U. S. C. § 101(12), and "claim," in turn, includes any "right to payment," § 101(5)(A). We have said that "[c]laim" has "the broadest available definition," Johnson v. Home State Bank, 501 U. S. 78, 83 (1991), and have held that the303"plain meaning of a 'right to payment' is nothing more nor less than an enforceable obligation, regardless of the objectives the State seeks to serve in imposing the obligation," Pennsylvania Dept. of Public Welfare v. Davenport, 495 U. S. 552, 559 (1990). See also Ohio v. Kovacs, 469 U. S. 274 (1985). In short, a debt is a debt, even when the obligation to pay it is also a regulatory condition.Petitioners argue that respondent's obligations are not "dischargeable" in bankruptcy because it is beyond the jurisdictional authority of bankruptcy courts to alter or modify regulatory obligations. Brief for Petitioners Arctic Slope Regional Corp. et al. 28-29; Brief for Petitioner FCC 30-31. Dischargeability, however, is not tied to the existence of such authority. A preconfirmation debt is dischargeable unless it falls within an express exception to discharge. Subsection 1141(d) of the Bankruptcy Code states that, except as otherwise provided therein, the "confirmation of a plan [of reorganization] ... discharges the debtor from any debt that arose before the date of such confirmation," 11 U. S. C. § 1141(d)(1)(A) (emphasis added), and the only debts it excepts from that prescription are those described in § 523, see § 1141(d)(2). Thus, "[e]xcept for the nine kinds of debts saved from discharge by 11 U. S. C. § 523(a), a discharge in bankruptcy discharges the debtor from all debts that arose before bankruptcy. § 727(b)." Kovacs, supra, at 278 (emphasis added).Artistically symmetrical with petitioners' contention that the Bankruptcy Court has no power to alter regulatory obligations is their contention that the D. C. Circuit has no power to modify or discharge a debt. See Brief for Petitioner FCC 31-32; Brief for Petitioner Arctic Slope Regional Corp. et al. 32, n. 9. Just as the former is irrelevant to whether the Bankruptcy Court can discharge a debt, so also the latter is irrelevant to whether the D. C. Circuit can set aside agency action that violates § 525. That court did not seek to modify or discharge the debt, but merely prevented the FCC from304304 FCC v. NEXTWAVE PERSONAL COMMUNICATIONS INC.violating § 525 by canceling licenses because of failure to pay debts dischargeable by bankruptcy courts.CFinally, our interpretation of § 525 does not create any conflict with the Communications Act. It does not, as petitioners contend, obstruct the functioning of the auction provisions of 47 U. S. C. § 309(j), since nothing in those provisions demands that cancellation be the sanction for failure to make agreed-upon periodic payments. Indeed, nothing in those provisions even requires the Commission to permit payment to be made over time, rather than leaving it to impecunious bidders to finance the full purchase price with private lenders. What petitioners describe as a conflict boils down to nothing more than a policy preference on the FCC's part for (1) selling licenses on credit and (2) canceling licenses rather than asserting security interests in licenses when there is a default. Such administrative preferences cannot be the basis for denying respondent rights provided by the plain terms of a law. "'[W]hen two statutes are capable of coexistence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.'" J. E. M. Ag Supply, Inc. v. Pioneer HiBred International, Inc., 534 U. S. 124, 143-144 (2001) (quoting Morton v. Mancari, 417 U. S. 535, 551 (1974)). There being no inherent conflict between § 525 and the Communications Act, "we can plainly regard each statute as effective." J. E. M., supra, at 144. And since § 525 circumscribes the Commission's permissible action, the revocation of NextWave's licenses is not in accordance with law. See 5 U. S. C. § 706.III*The dissent finds it "dangerous ... to rely exclusively upon the literal meaning of a statute's words," post, at 311 (opinion*JUSTICE STEVENS does not join this Part.305of BREYER, J.). Instead, it determines, in splendid isolation from that language,3 the purpose of the statute, which it takes to be "to forbid discrimination against those who are, or were, in bankruptcy and, more generally, to prohibit governmental action that would undercut the 'fresh start' that is bankruptcy's promise," post, at 313. It deduces these language-trumping "purposes" from the most inconclusive of indications. First, the ambiguous title of § 525(a), "Protection against discriminatory treatment," ibid. This, of course, could as well refer to discrimination against impending bankruptcy, aka insolvency. Second, its perception that the other prohibitions of § 525(a) apply only to acts "done solely for bankruptcy-related reasons." Ibid. We do not share that perception. For example, the prohibition immediately preceding the one at issue here forbids adverse government action taken because the debtor "has been insolvent before the commencement of the case under this title, or during the case but before the debtor is granted or denied a discharge." That seems to us clearly tied to insolvency alone (plus the mere fact of subsequent or contemporaneous bankruptcy), and does not require some additional motivation based on bankruptcy. The dissent's third indication of "purpose" consists of the ever-available snippets of legislative history, post, at 314-315.The dissent does eventually get to the statutory text at issue here: Step two of its analysis is to ask what interpretation of that text could possibly fulfill its posited "purposes." 43 The portion of the dissenting opinion that deduces the statute's purposes, Part II, post, at 313-315, contains no discussion of the portion of § 525(a) at issue here.4 The second of the purposes, by the way-prohibiting government action that "would undercut the 'fresh start' that is bankruptcy's promise," post, at 313-plays no real role in the dissent's analysis, if indeed such a circular criterion could ever playa role in any analysis. The whole issue before us can be described as asking what the Bankruptcy Code's promise of a "fresh start" consists of. Rather than reframing the question, our interpretation concretely accords a "fresh start" where the dissent would306306 FCC v. NEXTWAVE PERSONAL COMMUNICATIONS INC."One obvious way," the dissent concludes, "is to interpret the relevant phrase, 'solely because' of nonpayment of 'a debt that is dischargeable,' as requiring something more than a purely factual connection .... The statute's words are open to the interpretation that they require a certain relationship between (1) the dischargeability of the debt and (2) the decision to revoke the license." Post, at 316. To demonstrate that "openness," the dissent gives the example of a "rule telling apartment owners that they cannot refuse to rent 'solely because a family has children who are adopted.'" Post, at 319. Such a rule, it says quite correctly, is most reasonably read as making the adoptive nature of the children part of the prohibited motivation. But the example differs radically from the cases before us in two respects: (1) because an adopted child is the exception rather than the rule, and (2) because the class of children other than adopted children is surely not a disfavored one. In the cases before us, by contrast, the descriptive clause describes the rule rather than the exception. (As the dissent acknowledges, "virtually all debts" are dischargeable, post, at 310.) And the debts that do not fall within the rule (nondischargeable debts) are clearly disfavored by the Bankruptcy Code. To posit a text similar to the one before us, the dissent should have envisioned a rule that prohibited refusal to rent "solely because a family has children who are no more than normally destructive." Would the "no-more-than-normaldestructiveness" of the children be a necessary part of the apartment owner's motivation before he is in violation of the rule? That is to say, must he refuse to rent specifically because the children are no more than normally destructive? Of course not. The provision is most reasonably read as establishing an exception to the prohibition, rather than adding a motivation requirement: The owner may refuse to rent to families with destructive children. And the same is obvi-not-where there is revocation of a license solely because of a bankrupt's failure to pay dischargeable debts.307ously true here: The government may take action that is otherwise forbidden when the debt in question is one of the disfavored class that is nondischargeable.In addition to distorting the text of the provision, the dissent's interpretation renders the provision superfluous. The purpose of "forbid[ding] discrimination against those who are, or were, in bankruptcy," post, at 313, is already explicitly achieved by another portion of § 525(a), which prohibits termination of a license "solely because [the] bankrupt or debtor is or has been ... a bankrupt or debtor under the Bankruptcy Act." 11 U. s. C. § 525(a) (emphasis added). The dissent would have us believe that the language "solely because [the] bankrupt or debtor ... has not paid a debt that is dischargeable" merely achieves the very same objective through inappropriate language. We think Congress meant what it said: The government is not to revoke a bankruptcy debtor's license solely because of a failure to pay his debts.The dissent makes much of the "serious anomaly" that would arise from permitting "every car salesman, every residential home developer, every appliance company [to] threaten repossession of its product if a buyer does not pay," but denying that power to the government alone, post, at 312. It is by no means clear than any anomaly exists. The car salesman, residential home developer, etc., can obtain repossession of his product only (as the dissent acknowledges) "if [he] has taken a security interest in the product," ibid. It is neither clear that a private party can take and enforce a security interest in an FCC license, see, e. g., In re Cheskey, 9 FCC Rcd. 986, ~ 8 (1994), nor that the FCC cannot. (As we described in our statement of facts, the FCC purported to take such a security interest in the present cases. What is at issue, however, is not the enforcement of that interest in the bankruptcy process,5 but rather elimination of the li-5 The FCC initially participated in the bankruptcy proceedings as a creditor. See, e. g., In re NextWave Personal Communications, Inc., 235308308 FCC v. NEXTWAVE PERSONAL COMMUNICATIONS INC.Opinion of STEVENS, J.censes through the regulatory step of "revoking" themaction that the statute specifically forbids.) In any event, if there is an anomaly it is one that has been created by Congress-a state of affairs the dissent does not think intolerable, since its own disposition creates the anomaly of allowing the government to reclaim its property by means other than the enforcement of a security interest, but not permitting private individuals to do so.***For the reasons stated, the judgment of the Court of Appeals for the District of Columbia Circuit isAffirmed

OCTOBER TERM, 2002SyllabusFEDERAL COMMUNICATIONS COMMISSION v.NEXTWAVE PERSONAL COMMUNICATIONS INC. ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUITNo. 01-653. Argued October 8, 2002-Decided January 27, 2003*Pursuant to provisions of the Communications Act of 1934 authorizing the Federal Communications Commission (FCC) to award spectrum licenses to small businesses through competitive bidding, and to allow them to pay for the licenses in installments, the FCC auctioned off certain broadband personal communications services licenses to respondents (hereinafter NextWave). NextWave made a down payment on the purchase price, signed promissory notes for the balance, and executed agreements giving the FCC a first lien on, and security interest in, NextWave's rights and interest in the licenses, which recited that they were conditioned upon the full and timely payment of all monies due the FCC, and that failure to comply with this condition would result in their automatic cancellation. NextWave eventually filed for Chapter 11 bankruptcy protection and suspended payments to all creditors, including the FCC, pending confirmation of its reorganization plan. The FCC objected to the plan, asserting that NextWave's licenses had been canceled automatically when the company missed its first payment deadline, and announced that NextWave's licenses were available for auction. The Bankruptcy Court invalidated the cancellation of the licenses as a violation of various Bankruptcy Code provisions, but the Second Circuit reversed, holding that exclusive jurisdiction to review the FCC's regulatory action lay in the courts of appeals. After the FCC denied NextWave's petition for reconsideration of the license cancellation, the District of Columbia Circuit held that the cancellation violated 11 U. S. C. § 525(a), which provides: "[A] governmental unit may not ... revoke ... a license ... to ... a debtor ... solely because such ... debtor ... has not paid a debt that is dischargeable in the case."Held: Section 525 prohibits the FCC from revoking licenses held by a bankruptcy debtor upon the debtor's failure to make timely payments to the FCC for purchase of the licenses. It is undisputed that the FCC*Together with No. 01-657, Arctic Slope Regional Corp. et al. v. NextWave Personal Communications Inc. et al., also on certiorari to the same court.294294 FCC v. NEXTWAVE PERSONAL COMMUNICATIONS INC.Syllabusis a "governmental unit" that has "revoke[d]" a "license," and that NextWave is a "debtor" under the Bankruptcy Act. Pp. 301-308.(a) The Court rejects petitioners' argument that the FCC did not revoke NextWave's licenses "solely because" of nonpayment under § 525(a). The fact that the FCC had a valid regulatory motive for its action is irrelevant. Section 525 means nothing more or less than that the failure to pay a dischargeable debt must alone be the proximate cause of the cancellation, whatever the agency's ultimate motive may be. Pp. 301-302.(b) The FCC's contention that regulatory conditions like full and timely payment are not properly classified as "debts" under § 525(a) fails. Under the Bankruptcy Code, "debt" means "liability on a claim," § 101(12), and "claim," in turn, includes any "right to payment," § 101(5)(A). The plain meaning of a "right to payment" is nothing more nor less than an enforceable obligation, regardless of the Government's objectives in imposing the obligation. E. g., Pennsylvania Dept. of Public Welfare v. Davenport, 495 U. S. 552, 559. Also rejected is petitioners' argument that NextWave's obligations are not "dischargeable" under § 525(a) because it is beyond the bankruptcy courts' jurisdictional authority to alter or modify regulatory obligations. Dischargeability is not tied to the existence of such authority. The Bankruptcy Code states that confirmation of a reorganization plan discharges the debtor from any debt that arose before the confirmation date, 11 U. S. C. § 1141(d)(1)(A), and the only debts it excepts from that prescription are those described in § 523, see § 1141(d)(2). Ohio v. Kovacs, 469 U. S. 274, 278. Petitioners' contention that the D. C. Circuit has no power to modify or discharge a debt is irrelevant to whether that court can set aside agency action that violates § 525, which is all that it did when it prevented the FCC from canceling licenses because of failure to pay debts dischargeable by bankruptcy courts. Pp. 302-304.(c) Finally, this Court's interpretation of § 525 does not, as petitioners contend, create a conflict with the Communications Act by obstructing the functioning of that Act's auction provisions. Nothing in those provisions demands that cancellation be the sanction for failure to make agreed-upon periodic payments or even requires the FCC to permit payment to be made over time. What petitioners describe as a conflict boils down to nothing more than a policy preference on the FCC's part for (1) selling licenses on credit and (2) canceling licenses rather than asserting security interests when there is a default. Such administrative preferences cannot be the basis for denying NextWave rights provided by a law's plain terms. P. 304.254 F.3d 130, affirmed.295Full Text of Opinion

1984_83-1590

JUSTICE BRENNAN delivered the opinion of the Court.This case requires that we decide whether certain jury instructions in a criminal prosecution in which intent is an element of the crime charged and the only contested issue at trial satisfy the principles of Sandstrom v. Montana, 442 U. S. 510 (1979). Specifically, we must evaluate jury instructions stating that: (1)"[t]he acts of a person of sound mind and discretion are presumed to be the product of the person's will, but the presumption may be rebutted,"and (2)"[a] person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts, but the presumption may be rebutted."App. 8a-9a. The question is whether these instructions, when read in the context of the jury charge as a whole, violate the Fourteenth Amendment's requirement that the State prove every element of a criminal offense beyond a reasonable doubt. See Sandstrom, supra; In re Winship, 397 U. S. 358, 397 U. S. 364 (1970).IRespondent Raymond Lee Franklin, then 21 years old and imprisoned for offenses unrelated to this case, sought to escape custody on January 17, 1979, while he and three other prisoners were receiving dental care at a local dentist's office. The four prisoners were secured by handcuffs to the same 8-foot length of chain as they sat in the dentist's waiting room. At some point, Franklin was released from the chain, Page 471 U. S. 310 taken into the dentist's office, and given preliminary treatment, and then escorted back to the waiting room. As another prisoner was being released, Franklin, who had not been reshackled, seized a pistol from one of the two officers and managed to escape. He forced the dentist's assistant to accompany him as a hostage.In the parking lot, Franklin found the dentist's automobile, the keys to which he had taken before escaping, but was unable to unlock the door. He then fled with the dental assistant after refusing her request to be set free. The two set out across an open clearing and came upon a local resident. Franklin demanded this resident's car. When the resident responded that he did not own one, Franklin made no effort to harm him, but continued with the dental assistant until they came to the home of the victim, one Collie. Franklin pounded on the heavy wooden front door of the home and Collie, a retired 72-year-old carpenter, answered. Franklin was pointing the stolen pistol at the door when Collie arrived. As Franklin demanded his car keys, Collie slammed the door. At this moment, Franklin's gun went off. The bullet traveled through the wooden door and into Collie's chest, killing him. Seconds later, the gun fired again. The second bullet traveled upward through the door and into the ceiling of the residence.Hearing the shots, the victim's wife entered the front room. In the confusion accompanying the shooting, the dental assistant fled and Franklin did not attempt to stop her. Franklin entered the house, demanded the car keys from the victim's wife, and added the threat "I might as well kill you." When she did not provide the keys, however, he made no effort to thwart her escape. Franklin then stepped outside and encountered the victim's adult daughter. He repeated his demand for car keys, but made no effort to stop the daughter when she refused the demand and fled. Failing to obtain a car, Franklin left and remained at large until nightfall.Shortly after being captured, Franklin made a formal statement to the authorities in which he admitted that he had Page 471 U. S. 311 shot the victim but emphatically denied that he did so voluntarily or intentionally. He claimed that the shots were fired in accidental response to the slamming of the door. He was tried in the Superior Court of Bibb County, Georgia, on charges of malice murder [Footnote 1] -- a capital offense in Georgia -- and kidnaping. His sole defense to the malice murder charge was a lack of the requisite intent to kill. To support his version of the events, Franklin offered substantial circumstantial evidence tending to show a lack of intent. He claimed that the circumstances surrounding the firing of the gun, particularly the slamming of the door and the trajectory of the second bullet, supported the hypothesis of accident, and that his immediate confession to that effect buttressed the assertion. He also argued that his treatment of every other person encountered during the escape indicated a lack of disposition to use force.On the dispositive issue of intent, the trial judge instructed the jury as follows:"A crime is a violation of a statute of this State in which there shall be a union of joint operation of act or omission to act, and intention or criminal negligence. A person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking or intention or criminal negligence. The acts of a person of sound mind and discretion are presumed to be the product of the person's will, but the presumption may be rebutted. A person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts, but the presumption may be rebutted. A person will Page 471 U. S. 312 ~not be presumed to act with criminal intention, but the trier of facts, that is, the Jury, may find criminal intention upon a consideration of the words, conduct, demeanor, motive and all other circumstances connected with the act for which the accused is prosecuted."App. 8a-9a. Approximately one hour after the jury had received the charge and retired for deliberation, it returned to the courtroom and requested reinstruction on the element of intent and the definition of accident. Id. at 13a-14a. Upon receiving the requested reinstruction, the jury deliberated 10 more minutes and returned a verdict of guilty. The next day, Franklin was sentenced to death for the murder conviction.Franklin unsuccessfully appealed the conviction and sentence to the Georgia Supreme Court. Franklin v. State, 245 Ga. 141, 263 S.E.2d 666, cert. denied, 447 U.S. 930 (1980). He then unsuccessfully sought state postconviction relief. See Franklin v. Zant, Habeas Corpus File No. 5025 (Super.Ct.Butts Cty., Ga., Sept. 10, 1981), cert. denied, 456 U.S. 938 (1982). Having exhausted state postconviction remedies, Franklin sought federal habeas corpus relief, pursuant to 28 U.S.C. § 2254, in the United States District Court for the Middle District of Georgia on May 14, 1982. That court denied the application without an evidentiary hearing. App. 16a.Franklin appealed to the United States Court of Appeals for the Eleventh Circuit. The Court of Appeals reversed the District Court and ordered that the writ issue. 720 F.2d 1206 (1983). The court held that the jury charge on the dispositive issue of intent could have been interpreted by a reasonable juror as a mandatory presumption that shifted to the defendant a burden of persuasion on the intent element of the offense. For this reason the court held that the jury charge ran afoul of fundamental Fourteenth Amendment due process guarantees as explicated in Sandstrom v. Montana, 442 U. S. 510 (1979). See 720 F.2d at 1208-1212. In denying Page 471 U. S. 313 petitioner Francis' subsequent petition for rehearing, the panel elaborated its earlier holding to make clear that the effect of the presumption at issue had been considered in the context of the jury charge as a whole. See 723 F.2d 770, 771-772 (1984) (per curiam).We granted certiorari. 467 U.S. 1225 (1984). We affirm.IIThe Due Process Clause of the Fourteenth Amendment"protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged."In re Winship, 397 U.S. at 397 U. S. 364. This "bedrock, axiomatic and elementary' [constitutional] principle," id. at 397 U. S. 363, prohibits the State from using evidentiary presumptions in a jury charge that have the effect of relieving the State of its burden of persuasion beyond a reasonable doubt of every essential element of a crime. Sandstrom v. Montana, supra, at 442 U. S. 520-524; Patterson v. New York, 432 U. S. 197, 432 U. S. 210, 432 U. S. 215 (1977); Mullaney v. Wilbur, 421 U. S. 684, 421 U. S. 698-701 (1975); see also Morissette v. United States, 342 U. S. 246, 342 U. S. 274-275 (1952). The prohibition protects the "fundamental value determination of our society," given voice in Justice Harlan's concurrence in Winship, that "it is far worse to convict an innocent man than to let a guilty man go free." 397 U.S. at 397 U. S. 372. See Speiser v. Randall, 357 U. S. 513, 357 U. S. 525-526 (1958). The question before the Court in this case is almost identical to that before the Court in Sandstrom:"whether the challenged jury instruction had the effect of relieving the State of the burden of proof enunciated in Winship on the critical question of . . . state of mind,"442 U.S. at 442 U. S. 521, by creating a mandatory presumption of intent upon proof by the State of other elements of the offense.The analysis is straightforward."The threshold inquiry in ascertaining the constitutional analysis applicable to this kind of jury instruction is to determine the nature of the presumption Page 471 U. S. 314 it describes."Id. at 442 U. S. 514. The court must determine whether the challenged portion of the instruction creates a mandatory presumption, see id. at 442 U. S. 520-524, or merely a permissive inference, see Ulster County Court v. Allen, 442 U. S. 140, 442 U. S. 157-163 (1979). A mandatory presumption instructs the jury that it must infer the presumed fact if the State proves certain predicate facts. [Footnote 2] A permissive inference suggests to the jury a possible conclusion to be drawn if the State proves predicate facts, but does not require the jury to draw that conclusion.Mandatory presumptions must be measured against the standards of Winship as elucidated in Sandstrom. Such presumptions violate the Due Process Clause if they relieve the State of the burden of persuasion on an element of an offense. Patterson v. New York, supra, at 432 U. S. 215 ("[A] State must prove every ingredient of an offense beyond a reasonable doubt, and . . . may not shift the burden of proof to the defendant by presuming that ingredient upon proof of the other elements of the offense"). See also Sandstrom, supra, at 442 U. S. 520-524; Mullaney v. Wilbur, supra, at 421 U. S. 698-701. [Footnote 3] A permissive inference does not relieve the State of its burden of persuasion, because it still requires the State to convince the jury that the suggested conclusion should be inferred based on the predicate facts proved. Such inferences do not necessarily implicate the concerns of Sandstrom. A permissive inference violates the Due Process Clause only if the suggested Page 471 U. S. 315 conclusion is not one that reason and common sense justify in light of the proven facts before the jury. Ulster County Court, supra, at 442 U. S. 157-163.Analysis must focus initially on the specific language challenged, but the inquiry does not end there. If a specific portion of the jury charge, considered in isolation, could reasonably have been understood as creating a presumption that relieves the State of its burden of persuasion on an element of an offense, the potentially offending words must be considered in the context of the charge as a whole. Other instructions might explain the particular infirm language to the extent that a reasonable juror could not have considered the charge to have created an unconstitutional presumption. Cupp v. Naughten, 414 U. S. 141, 414 U. S. 147 (1973). This analysis"requires careful attention to the words actually spoken to the jury . . . , for whether a defendant has been accorded his constitutional rights depends upon the way in which a reasonable juror could have interpreted the instruction."Sandstrom, supra, at 442 U. S. 514.AFranklin levels his constitutional attack at the following two sentences in the jury charge:"The acts of a person of sound mind and discretion are presumed to be the product of the person's will, but the presumption may be rebutted. A person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts, but the presumption may be rebutted."App. 8a-9a. [Footnote 4] The Georgia Supreme Court has interpreted this language as creating no more than a permissive inference that comports with the constitutional standards of Ulster County Court v. Allen, supra. See Skrine v. State, 244 Ga. 520, 521, 260 S.E.2d 900, 901 (1979). The question, however, is not what the State Supreme Court declares the meaning of the charge to be, but Page 471 U. S. 316 rather what a reasonable juror could have understood the charge as meaning. Sandstrom, 442 U.S. at 442 U. S. 516-517 (state court "is not the final authority on the interpretation which a jury could have given the instruction"). The federal constitutional question is whether a reasonable juror could have understood the two sentences as a mandatory presumption that shifted to the defendant the burden of persuasion on the element of intent once the State had proved the predicate acts.The challenged sentences are cast in the language of command. They instruct the jury that "acts of a person of sound mind and discretion are presumed to be the product of the person's will," and that a person "is presumed to intend the natural and probable consequences of his acts," App. 8a-9a (emphasis added). These words carry precisely the message of the language condemned in Sandstrom, 442 U.S. at 442 U. S. 515 ("The law presumes that a person intends the ordinary consequences of his voluntary acts'"). The jurors"were not told that they had a choice, or that they might infer that conclusion; they were told only that the law presumed it. It is clear that a reasonable juror could easily have viewed such an instruction as mandatory."Ibid. (emphasis added). The portion of the jury charge challenged in this case directs the jury to presume an essential element of the offense -- intent to kill -- upon proof of other elements of the offense -- the act of slaying another. In this way, the instructions"undermine the factfinder's responsibility at trial, based on evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt."Ulster County Court v. Allen, supra, at 442 U. S. 156 (emphasis added).The language challenged here differs from Sandstrom, of course, in that the jury in this case was explicitly informed that the presumptions "may be rebutted." App. 8a-9a. The State makes much of this additional aspect of the instruction in seeking to differentiate the present case from Sandstrom. This distinction does not suffice, however, to cure the infirmity in the charge. Though the Court in Sandstrom Page 471 U. S. 317 acknowledged that the instructions there challenged could have been reasonably understood as creating an irrebuttable presumption, 442 U.S. at 442 U. S. 517, it was not on this basis alone that the instructions were invalidated. Had the jury reasonably understood the instructions as creating a mandatory rebuttable presumption, the instructions would have been no less constitutionally infirm. Id. at 442 U. S. 520-524.An irrebuttable or conclusive presumption relieves the State of its burden of persuasion by removing the presumed element from the case entirely if the State proves the predicate facts. A mandatory rebuttable presumption does not remove the presumed element from the case if the State proves the predicate facts, but it nonetheless relieves the State of the affirmative burden of persuasion on the presumed element by instructing the jury that it must find the presumed element unless the defendant persuades the jury not to make such a finding. A mandatory rebuttable presumption is perhaps less onerous from the defendant's perspective, but it is no less unconstitutional. Our cases make clear that"[s]uch shifting of the burden of persuasion with respect to a fact which the State deems so important that it must be either proved or presumed is impermissible under the Due Process Clause."Patterson v. New York, 432 U.S. at 432 U. S. 215. In Mullaney v. Wilbur, we explicitly held unconstitutional a mandatory rebuttable presumption that shifted to the defendant a burden of persuasion on the question of intent. 421 U.S. at 421 U. S. 698-701. And in Sandstrom, we similarly held that instructions that might reasonably have been understood by the jury as creating a mandatory rebuttable presumption were unconstitutional. 442 U.S. at 442 U. S. 524. [Footnote 5] Page 471 U. S. 318When combined with the immediately preceding mandatory language, the instruction that the presumptions "may be rebutted" could reasonably be read as telling the jury that it was required to infer intent to kill as the natural and probable consequence of the act of firing the gun unless the defendant persuaded the jury that such an inference was unwarranted. The very statement that the presumption "may be rebutted" could have indicated to a reasonable juror that the defendant bore an affirmative burden of persuasion once the State proved the underlying act giving rise to the presumption. Standing alone, the challenged language undeniably created an unconstitutional burden-shifting presumption with respect to the element of intent.BThe jury, of course, did not hear only the two challenged sentences. The jury charge, taken as a whole, might have Page 471 U. S. 319 explained the proper allocation of burdens with sufficient clarity that any ambiguity in the particular language challenged could not have been understood by a reasonable juror as shifting the burden of persuasion. See Cupp v. Naughten, 414 U. S. 141 (1973). The State argues that sufficient clarifying language exists in this case. In particular, the State relies on an earlier portion of the charge instructing the jurors that the defendant was presumed innocent, and that the State was required to prove every element of the offense beyond a reasonable doubt. [Footnote 6] The State also points to the sentence immediately following the challenged portion of the charge, which reads: "[a] person will not be presumed to act with criminal intention. . . ." App. 9a.As we explained in Sandstrom, general instructions on the State's burden of persuasion and the defendant's presumption of innocence are not "rhetorically inconsistent with a conclusive or burden-shifting presumption," because"[t]he jury could have interpreted the two sets of instructions as indicating that the presumption was a means by which proof beyond a reasonable doubt as to intent could be satisfied."442 U.S. at 442 U. S. 518-519, n. 7. In light of the instructions on intent given in this case, a reasonable juror could thus have thought that, although intent must be proved beyond a reasonable doubt, proof of the firing of the gun and its ordinary consequences constituted proof of intent beyond a reasonable doubt unless the defendant persuaded the jury otherwise. Cf. Mullaney v. Wilbur, 421 U.S. at 421 U. S. 703, n. 31. These Page 471 U. S. 320 general instructions as to the prosecution's burden and the defendant's presumption of innocence do not dissipate the error in the challenged portion of the instructions.Nor does the more specific instruction following the challenged sentences --"A person will not be presumed to act with criminal intention but the trier of facts, that is, the Jury, may find criminal intention upon a consideration of the words, conduct, demeanor, motive and all other circumstances connected with the act for which the accused is prosecuted,"App. 9a -- provide a sufficient corrective. It may well be that this "criminal intention" instruction was not directed to the element of intent at all, but to another element of the Georgia crime of malice murder. The statutory definition of capital murder in Georgia requires malice aforethought. Ga.Code Ann. § 16-5-1 (1984) (formerly Ga.Code Ann. § 26-1101(a)(1978)). Under state law, malice aforethought comprises two elements: intent to kill and the absence of provocation or justification. See Patterson v. State, 239 Ga. 409, 416-417, 238 S.E.2d 2, 8 (1977); Lamb v. Jernigan, 683 F.2d 1332, 1337 (CA11 1982) (interpreting Ga.Code Ann. § 16-5-1), cert. denied, 460 U.S. 1024 (1983). At another point in the charge in this case, the trial court, consistently with this understanding of Georgia law, instructed the jury that malice is "the unlawful, deliberate intention to kill a human being without justification or mitigation or excuse." App. 10a.The statement "criminal intention may not be presumed" may well have been intended to instruct the jurors that they were not permitted to presume the absence of provocation or justification, but that they could infer this conclusion from circumstantial evidence. Whatever the court's motivation in giving the instruction, the jury could certainly have understood it this way. A reasonable juror trying to make sense of the juxtaposition of an instruction that "a person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts," id. at 8a-9a, and an Page 471 U. S. 321 instruction that "[a] person will not be presumed to act with criminal intention," id. at 9a, may well have thought that the instructions related to different elements of the crime, and were therefore not contradictory -- that he could presume intent to kill, but not the absence of justification or provocation. [Footnote 7] Page 471 U. S. 322Even if a reasonable juror could have understood the prohibition of presuming "criminal intention" as applying to the element of intent, that instruction did no more than contradict the instruction in the immediately preceding sentence. A reasonable juror could easily have resolved the contradiction in the instruction by choosing to abide by the mandatory presumption and ignore the prohibition of presumption. Nothing in these specific sentences or in the charge as a whole makes clear to the jury that one of these contradictory instructions carries more weight than the other. Language that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity. A reviewing court has no way of knowing which of the two irreconcilable instructions the jurors applied in reaching their verdict. [Footnote 8] Had the instruction Page 471 U. S. 323 "[a] person . . . is presumed to intend the natural and probable consequences of his acts," App. 8a-9a, been followed by the instruction"this means that a person will not be presumed to act with criminal intention, but the jury may find criminal intention upon consideration of all circumstances connected with the act for which the accused is prosecuted,"a somewhat stronger argument might be made that a reasonable juror could not have understood the challenged language as shifting the burden of persuasion to the defendant. Cf. Sandstrom, 442 U.S. at 442 U. S. 517 ("[G]iven the lack of qualifying instructions as to the legal effect of the presumption, we cannot Page 471 U. S. 324 discount the possibility that the jury may have interpreted the instruction" in an unconstitutional manner). See also Corn v. Zant, 708 F.2d 549, 559 (CA11 1983), cert. denied, 467 U. S. 1220 (1984). Whether or not such explanatory language might have been sufficient, however, no such language is present in this jury charge. If a juror thought the "criminal intention" instruction pertained to the element of intent, the juror was left in a quandary as to whether to follow that instruction or the immediately preceding one it contradicted. [Footnote 9] Page 471 U. S. 325Because a reasonable juror could have understood the challenged portions of the jury instruction in this case as creating a mandatory presumption that shifted to the defendant the burden of persuasion on the crucial element of intent, and because the charge, read as a whole, does not explain or cure the error, we hold that the jury charge does not comport with the requirements of the Due Process Clause.IIIPetitioner argues that, even if the jury charge fails under Sandstrom, this Court should overturn the Court of Appeals because the constitutional infirmity in the charge was harmless error on this record. This Court has not resolved whether an erroneous charge that shifts a burden of persuasion to the defendant on an essential element of an offense can ever be harmless. See Connecticut v. Johnson, 460 U. S. 73 (1983). We need not resolve the question in this case. The Court of Appeals conducted a careful harmless error inquiry and concluded that the Sandstrom error at trial could not be deemed harmless. 720 F.2d at 1212. The court noted:"[Franklin's] only defense was that he did not have the requisite intent to kill. The facts did not overwhelmingly preclude that defense. The coincidence of the first Page 471 U. S. 326 shot with the slamming of the door, the second shot's failure to hit anyone, or take a path on which it would have hit anyone, and the lack of injury to anyone else all supported the lack of intent defense. A presumption that Franklin intended to kill completely eliminated his defense of 'no intent.' Because intent was plainly at issue in this case, and was not overwhelmingly proved by the evidence . . . we cannot find the error to be harmless."Ibid. Even under the harmless error standard proposed by the dissenting Justices in Connecticut v. Johnson, supra, at 460 U. S. 97, n. 5 (evidence "so dispositive of intent that a reviewing court can say beyond a reasonable doubt that the jury would have found it unnecessary to rely on the presumption") (POWELL, J., joined by BURGER, C.J., and REHNQUIST and O'CONNOR, JJ., dissenting), this analysis by the Court of Appeals is surely correct. [Footnote 10] The jury's request for reinstruction on the elements of malice and accident, App. 13a-14a, lends further substance to the court's conclusion that the evidence of intent was far from overwhelming in this case. We therefore affirm the Court of Appeals on the harmless error question as well.IVSandstrom v. Montana made clear that the Due Process Clause of the Fourteenth Amendment prohibits the State from making use of jury instructions that have the effect of relieving the State of the burden of proof enunciated in Winship on the critical question of intent in a criminal prosecution. 442 U.S. at 442 U. S. 521. Today we reaffirm the rule of Sandstrom and the wellspring due process principle from which it was drawn. The Court of Appeals faithfully Page 471 U. S. 327 and correctly applied this rule, and the court's judgment is thereforeAffirmed

U.S. Supreme CourtFrancis v. Franklin, 471 U.S. 307 (1985)Francis v. FranklinNo. 83-1590Argued November 28, 1984Decided April 29, 1985471 U.S. 307SyllabusRespondent state prisoner, while attempting to escape after receiving treatment at a local dentist's office, shot and killed the resident of a nearby house with a stolen pistol when, at the moment the resident slammed the front door as respondent demanded the key to the resident's car, the pistol fired and a bullet pierced the door, hitting the resident in the chest. Respondent was tried in Georgia Superior Court on a charge of malice murder. His sole defense was a lack of the requisite intent to kill, claiming that the killing was an accident. The trial judge instructed the jury on the issue of intent as follows:"The acts of a person of sound mind and discretion are presumed to be the product of the person's will, but the presumption may be rebutted. A person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts, but the presumption may be rebutted. A person will not be presumed to act with criminal intention, but the trier of facts . . . may find criminal intention upon a consideration of the words, conduct, demeanor, motive and all of the circumstances connected with the act for which the accused is prosecuted."The jury was also instructed that the respondent was presumed innocent and that the State was required to prove every element of the offense beyond a reasonable doubt. The jury returned a guilty verdict, and respondent was sentenced to death. After an unsuccessful appeal to the Georgia Supreme Court, and after exhausting state postconviction remedies, respondent sought habeas corpus relief in Federal District Court. That court denied relief, but the Court of Appeals reversed, holding that the jury charge on intent could have been interpreted by a reasonable juror as a mandatory presumption that shifted to respondent a burden of persuasion on the intent element of the offense, and accordingly violated the Fourteenth Amendment due process guarantees set forth in Sandstrom v. Montana, 442 U. S. 510.Held: The instruction on intent, when read in the context of the jury charge as a whole, violated the Fourteenth Amendment's requirement that the State prove every element of a criminal offense beyond a reasonable doubt. Sandstrom v. Montana, supra. Pp. 471 U. S. 313-327.(a) A jury instruction that creates a mandatory presumption whereby the jury must infer the presumed fact if the State proves certain predicate Page 471 U. S. 308 facts violates the Due Process Clause if it relieves the State of the burden of persuasion on an element of an offense. If a specific portion of the jury charge, considered in isolation, could reasonably have been understood as creating such a presumption, the potentially offending words must be considered in the context of the charge as a whole. Pp. 471 U. S. 313-315.(b) Here, a reasonable juror could have understood that the first two sentences of the instruction on intent created a mandatory presumption that shifted to respondent the burden of persuasion on the element of intent once the State had proved the predicate acts. The fact that the jury was informed that the presumption "may be rebutted" does not cure the infirmity in the charge, since, when combined with the immediately preceding language, the instruction could be read as telling the jury that it was required to infer intent to kill as a natural and probable consequence of the act of firing the pistol unless respondent persuaded the jury that such an inference was unwarranted. Pp. 471 U. S. 315-318.(c) The general instructions as to the prosecution's burden and respondent's presumption of innocence did not dissipate the error in the challenged portion of the instruction on intent, because such instructions are not necessarily inconsistent with language creating a mandatory presumption of intent. Nor did the more specific "criminal intention" instruction following the challenged sentences provide a sufficient corrective, since it may well be that it was not directed to the element of intent at all, but to another element of malice murder in Georgia -- the absence of provocation or justification. That is, a reasonable juror may well have thought that the instructions related to different elements of the crime, and were therefore not contradictory -- that he could presume intent to kill, but not the absence of provocation or justification. But even if a juror could have understood the "criminal intention" instruction as applying to the element of intent, that instruction did no more than contradict the immediately preceding instructions. Language that merely contradicts, and does not explain, a constitutionally infirm instruction does not suffice to absolve the infirmity. Pp. 471 U. S. 318-325.(d) Whether or not Sandstrom error can ever be harmless, the constitutional infirmity in this jury charge was not harmless error, because intent was plainly at issue, and was not overwhelmingly proved by the evidence. Pp. 471 U. S. 325-326.720 F.2d 1206 and 723 F.2d 770, affirmed.BRENNAN, J., delivered the opinion of the Court, in which WHITE, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. POWELL, J., filed a dissenting opinion, post, p. 471 U. S. 327. REHNQUIST J., filed a dissenting opinion, in which BURGER, C.J., and O'CONNOR, J., joined, post, p. 471 U. S. 331. Page 471 U. S. 309

1955_48

MR. JUSTICE FRANKFURTER delivered the opinion of the Court.This case is here to review the judgment of the Court of Appeals for the District of Columbia affirming an order of the Subversive Activities Control Board that petitioner register with the Attorney General as a "Communist action" organization, as required by the Subversive Activities Control Act of 1950, Title I of the Internal Security Act of 1950, 64 Stat. 987. That Act sets forth a comprehensive plan for regulation of "Communist action" organizations. [Footnote 1] Section 2 of the Act describes a Page 351 U. S. 117 world Communist movement directed from abroad and designed to overthrow the Government of the United States by any means available, including violence. Section 7 requires all Communist action organizations to register as such with the Attorney General. If the Attorney General has reason to believe that an organization, which has not registered, is a Communist action organization, he is required by § 13(a) to bring a proceeding to determine that fact before the Subversive Activities Control Board, a five-man board appointed by the President with the advice and consent of the Senate and created for the purpose of holding hearings and making such determinations. Section 13(e) lays down certain standards for judgment by the Board.If the Board finds that an organization is a Communist action organization, it enters an order requiring the organization to register with the Attorney General. § 13(g). Section 14 provides the right to file a petition for review of Board action in the Court of Appeals for the District of Columbia, with opportunity for review by this Court upon certiorari. Once an organization registers or there is outstanding a final order of the Board requiring it to register, several consequences follow with respect to the Page 351 U. S. 118 organization and its members, but these need not now be detailed. See §§ 4, 5, 6, 7, 8, 10, 11, 15, 22, 25, 50 U.S.C. §§ 783-787, 789, 790, 792(a, e, g), 793, 794.Proceeding under § 13(a) of this statute, the Attorney General, on November 22, 1950, petitioned the Board for an order directing petitioner to register pursuant to § 7 of the Act. Petitioner sought unsuccessfully by numerous motions before the Board and by proceedings in the United States District Court for the District of Columbia -- one case is reported at 96 F. Supp. 47 (Communist Party of United States of America v. McGrath) -- to attack the validity of, and to abort, the hearing. The hearing began on April 23, 1951, before three members of the Board, later reduced to two, sitting as a hearing panel, and it terminated on July 1, 1952. Proposed findings of fact and briefs were filed by both parties, and oral argument was held before the hearing panel in August, 1952. In October, 1952 the hearing panel issued a recommended decision that the Board order petitioner to register as a Communist action organization. Exceptions to the panel's findings were filed by both parties, and oral argument was held before the Board in January, 1953. The Board filed its report, which occupies 251 pages of the record in this case, on April 20, 1953.In its report, the Board found that there existed a world Communist movement, substantially as described in § 2 of the Act, organized and directed by a foreign government. The Board detailed the history of the Communist Party of the United States and its close relation to the world Communist movement. It then set forth illustrative evidence and made findings with respect to the statutory criteria of § 13(e) of the Act, which required the Board to consider "the extent to which" the organization met them. [Footnote 2] The Board found that the conditions Page 351 U. S. 119 set forth in each of the paragraphs were applicable to petitioner. On the basis of these findings, the Board concluded that petitioner was a Communist action organization, as defined by § 3, and ordered it to register as such with the Attorney General.Petitioner brought this order to the Court of Appeals for the District of Columbia for review. While the case was pending, it filed a motion, supported by affidavit, Page 351 U. S. 120 for leave to adduce additional evidence pursuant to § 14(a) of the Act. [Footnote 3] The basis of the motion was that the additional material evidence became available to the petitioner subsequent to the administrative proceeding, and that this evidence would"establish that the testimony of three of the witnesses for the Attorney General, on which [the Board] relied extensively and heavily in making findings which are of key importance to the order now under review, was false. . . . In summary, this evidence will establish that Crouch, Johnson, and Matusow, all professional informers heretofore employed by the Department of Justice as witnesses in numerous proceedings, have committed perjury, are completely untrustworthy, and should be accorded no credence; that at least two of them are now being investigated for perjury by the Department of Justice, and that, because their character as professional perjurors [sic] has now been conclusively and publicly demonstrated, the Attorney General has ceased to employ any of them as witnesses."Petitioner listed a number of witnesses whom it proposed to call to substantiate its claim, and also set forth a detailed affidavit in support of its allegations. Page 351 U. S. 121The Government did not deny these allegations. It filed a "Memorandum in Opposition to Motion for Leave to Adduce Additional Evidence," signed by the General Counsel to the Board and by officials of the Department of Justice. The memorandum asserted that the hearing should not be reopened for the receipt of evidence merely questioning, as it claimed, the credibility of some witnesses, but not any fact at issue, and it maintained that the findings of the Board were amply supported by evidence apart from the testimony of the three witnesses sought to be discredited. On December 23, 1954, this motion was formally denied by the Court of Appeals without opinion. In its full opinion on the merits, filed the same day, however, the Court of Appeals supported its rejection of petitioner's motion:"The Party attacks the credibility of the witnesses presented by the Government. In this connection, it stresses that some of these witnesses . . . were under charges of false swearing. Full opportunity for cross-examination of these witnesses was afforded at the hearing before the Board, and full opportunity was also afforded for the presentation of rebuttal testimony. The evaluation of credibility is primarily a matter for the trier of the facts, and a reviewing court cannot disturb that evaluation unless a manifest error has been made. Moreover, the testimony of the witnesses against whom charges are said to have been made was consistent with, and supported by, masses of other evidence. . . ."96 U.S.App.D.C. 66, 100, 223 F.2d 531, 565.The Court of Appeals affirmed the order of the Board. It sustained § 13(e) against the contention that its standards were vague and irrational. It held that the findings of the Board had been established by a preponderance of the evidence, except that it struck, as not being Page 351 U. S. 122 supported by a preponderance of the evidence, the finding that the secret practices were undertaken for the purpose of promoting the objectives, and concealing the true nature, of petitioner; and it also struck the finding in connection with reporting to a foreign government, because the record supported only a finding of reporting by Party leaders "upon occasion," not a finding which implied a constant, systematic reporting. The court, however, found that the Board's conclusion was supported by the basic findings which it had affirmed. With respect to petitioner's other attacks on the constitutional validity of the statute, the court found it necessary to consider some of the so-called "sanction" sections, §§ 5, 6, 10, 11, 22, and 25, as well as § 7, the registration section. It held that they were all constitutional, and therefore affirmed the order of the Board. [Footnote 4]The challenge to the Act on which the order was based plainly raises constitutional questions appropriate for this Court's consideration, and so we brought the case here. 349 U.S. 943. At the threshold, we are, however, confronted by a particular claim that the Court of Appeals erred in refusing to return the case to the Board for consideration of the new evidence proffered by petitioner's motion and affidavit. This nonconstitutional issue must be met at the outset because the case must be decided on a nonconstitutional issue, if the record calls for it, without reaching constitutional problems. Peters v. Hobby, 349 U. S. 331.In considering this nonconstitutional issue raised by denial of petitioner's motion, we must avoid any intimation Page 351 U. S. 123 with respect to the other issues raised by petitioner. We do not so intimate by concluding that the testimony of the three witnesses, against whom the uncontested challenge of perjury was made, was not inconsequential in relation to the issues on which the Board had to pass. No doubt a large part of the record consisted of documentary evidence. However, not only was the human testimony significant, but the documentary evidence was also linked to the activities of the petitioner and to the ultimate finding of the Board by human testimony, and such testimony was in part that of these three witnesses. The facts bearing on the issue are not in controversy. The direct testimony of witness Crouch occupied 387 pages of the typewritten transcript; that of Johnson, 163 pages; and that of Matusow, 118 pages. The annotated report of the Board, in which citations to the evidence were made to illustrate the support for its findings, contained 36 references to the testimony of Crouch, 25 references to the testimony of Johnson, and 24 references to the testimony of Matusow. These references were made in support of every finding under the eight criteria of § 13(e), and it is also not to be assumed that the evidence given by these three witnesses played no role in the Board's findings of fact even when not specifically cited. [Footnote 5] Testimony, for example, directed toward proving Page 351 U. S. 124 that the Communist Party of the United States was an agency utilized by a foreign government to undermine the loyalty of the armed forces, and to be in a position to paralyze shipping and prevent transportation of soldiers and war supplies through the Panama Canal, Hawaii, and the ports of San Francisco and New York in time of war, cannot be deemed insignificant in such a determination as that which the Board made in this proceeding.This is a proceeding under an Act which Congress conceived necessary for "the security of the United States and to the existence of free American institutions. . . ." 64 Stat. at 989. The untainted administration of justice is certainly one of the most cherished aspects of our institutions. Its observance is one of our proudest boasts. This Court is charged with supervisory functions in relation to proceedings in the federal courts. See McNabb v. United States, 318 U. S. 332. Therefore, fastidious regard for the honor of the administration of justice requires the Court to make certain that the doing of justice be made so manifest that only irrational or perverse claims of its disregard can be asserted.When uncontested challenge is made that a finding of subversive design by petitioner was in part the product of three perjurious witnesses, it does not remove the taint for a reviewing court to find that there is ample innocent testimony to support the Board's findings. If these witnesses in fact committed perjury in testifying in other cases on subject matter substantially like that of their testimony in the present proceedings, their testimony in this proceeding is inevitably discredited, and the Board's determination must duly take this fact into account. We Page 351 U. S. 125 cannot pass upon a record containing such challenged testimony. We find it necessary to dispose of the case on the grounds we do not in order to avoid a constitutional adjudication, but because the fair administration of justice requires it. Since reversal is thus demanded, however, we do not reach the constitutional issues.The basis for challenging the testimony was not in existence when the proceedings were concluded before the Board. Petitioner should therefore be given leave to make its allegations before the Board in a proceeding under § 14(a) of the Act. The issue on which the case must be returned to the Board lies within a narrow compass, and the Board has ample scope of discretion in passing upon petitioner's motion. The purpose of this remand, as is its reason, is to make certain that the Board bases its findings upon untainted evidence. To that end, it may hold a hearing to ascertain the truth of petitioner's allegations, and, if the testimony of the three witnesses is discredited, it must not leave that testimony part of the record. Alternatively, the Board may choose to assume the truth of petitioner's allegations and, without further hearing, expunge the testimony of these witnesses from the record. In either event, the Board must then reconsider its original determination in the light of the record as freed from the challenge that now beclouds it.The case is reversed and remanded for proceedings in conformity with this opinion.Reversed

U.S. Supreme CourtCommunist Party v. SACB, 351 U.S. 115 (1956)Communist Party v. Subserve Activities Control BoardNo. 48Argued November 17, 1955Decided April 30, 1956351 U.S. 115SyllabusAn order of the Subversive Activities Control Board that petitioner register with the Attorney General as a "Communist action" organization, as required by the Subversive Activities Control Act of 1950, was appealed by petitioner to the Court of Appeals for the District of Columbia. While the appeal was pending, petitioner filed a motion for leave to adduce additional evidence pursuant to § 14(a) of the Act, alleging, inter alia, that evidence which became available to petitioner subsequent to the administrative proceeding would establish that the testimony of three of the Attorney General's witnesses on which the Board relied was perjurious. The Government did not deny petitioner's allegations. The Court of Appeals denied the motion, upheld the constitutionality of the Act, and affirmed the Board's order. Both the Government and the Court of Appeals deemed the innocent testimony sufficient to sustain the Board's conclusion.Held: the Court of Appeals erred in refusing to return the case to the Board for consideration of the new evidence proffered by petitioner's motion and affidavit. Pp. 351 U. S. 116-125.(a) The case must be decided on the nonconstitutional issue, if the record calls for it, without reaching constitutional problems. P. 351 U. S. 122.(b) The testimony of the three allegedly perjurious witnesses was not inconsequential in relation to the issues on which the Board had to pass. Pp. 351 U. S. 122-124.(c) When uncontested challenge is made that a finding of subversive design by petitioner was in part the product of three perjurious witnesses, it does not remove the taint for a reviewing court to find that there is ample innocent testimony to support the Board's findings. Pp. 351 U. S. 124-125.(d) Since the basis for challenging the testimony was not in existence when the proceedings were concluded before the Board, petitioner should be given leave to make its allegations before the Board in a proceeding under § 14(a) of the Act. P. 351 U. S. 125. Page 351 U. S. 116(e) The Board must reconsider its original determination in the light of the record freed from the challenge that now beclouds it, and must base its findings upon untainted evidence. P. 351 U. S. 125.96 U.S.App.D.C. 66, 223 F.2d 531, reversed and remanded.

1961_323

Opinion of the Court by MR. JUSTICE DOUGLAS, announced by MR. JUSTICE BRENNAN.This is a suit in admiralty brought by a seaman to recover (a) maintenance and cure and (b) damages for Page 369 U. S. 528 failure to pay maintenance and cure. [Footnote 1] The District Court, while disallowing the claim for damages, granted maintenance, less any sums earned by the libellant during the period in question. 200 F. Supp. 802. The Court of Appeals affirmed, Chief Judge Sobeloff dissenting. 291 F.2d 813. The case is here on a writ of certiorari. 368 U.S. 888.Libellant served on respondents' [Footnote 2] vessel from November 26, 1956, to March 2, 1957, when he was discharged on termination of a voyage. On March 7, 1957, he reported to a United States Public Health Service Hospital for examination, and was admitted on March 18, 1957, as an inpatient, and treated for suspected tuberculosis. On June 6, 1957, he was discharged to an outpatient status and he remained in that status for over two years. On August 25, 1959, he was notified that he was fit for duty as of August 19, 1959.The hospital records show a strong probability of active tuberculosis. The Master furnished libellant a certificate to enter the hospital on his discharge, March 2, 1957. Though libellant forwarded to the owner's agent an abstract of his clinical record at the hospital in 1957, the only investigation conducted by them was an interrogation of the Master and Chief Engineer, who stated that the libellant had never complained of any illness during his four months' service. The owner made no effort to make any further investigation of libellant's claim for maintenance and cure, and, according to the findings, did not bother even to admit or deny the validity Page 369 U. S. 529 of that claim. Nearly two years passed during which libellant was on his own. Ultimately he was required to hire an attorney and sue in the courts to recover maintenance and cure, agreeing to pay the lawyer a 50% contingent fee. Even so, the District Court held that no damages for failure to furnish maintenance and cure had been shown. In its view, such damages are payable not for attorney's fees incurred, but only when the failure to furnish maintenance and cure caused or aggravated the illness or other physical or mental suffering.The District Court first allowed maintenance at the rate of $8 a day from June 6, 1957, to February 18, 1959. Since libellant during that period had worked as a taxi driver, the District Court ordered that his earnings be deducted from the amount owed by respondents. Subject to that credit, the order also provided that maintenance at $8 per day be continued until such time as the libellant reached the maximum state of recovery. The District Court allowed in addition 6% interest for each week's maintenance unpaid. Subsequently, the District Court extended the maintenance to cover the period from March 7, 1957, to March 17, 1957, and from February 18, 1959, through August 25, 1959, these later awards being without interest.The Court of Appeals denied counsel fees as damages, relying on the conventional rule that, in suits for breach of contract, the promisee is not allowed that item in computing the damages payable by the promisor. And the Court of Appeals, following Wilson v. United States, 229 F.2d 277, and Perez v. Suwanee S.S. Co., 239 F.2d 180, from the Second Circuit, held that a seaman has the duty to mitigate damages, and that, since "the purpose of maintenance and cure is to make the seaman whole," "he will get something more than he is entitled to" unless his Page 369 U. S. 530 earnings during the period are deducted. 291 F.2d at 814, 815.We disagree with the lower courts on both points.IEquity is no stranger in admiralty; admiralty courts are, indeed, authorized to grant equitable relief. See Swift & Co. v. Compania Caribe, 339 U. S. 684, 339 U. S. 691-692, where we said,"We find no restriction upon admiralty by chancery so unrelenting as to bar the grant of any equitable relief even when that relief is subsidiary to issues wholly within admiralty jurisdiction."Counsel fees have been awarded in equity actions, as where Negroes were required to bring suit against a labor union to prevent discrimination. Rolax v. Atlantic Coast Line R. Co., 186 F.2d 473, 481. As we stated in Sprague v. Ticonic Nat. Bank, 307 U. S. 161, 307 U. S. 164, allowance of counsel fees and other expenses entailed by litigation, but not included in the ordinary taxable costs regulated by statute, is "part of the historic equity jurisdiction of the federal courts." We do not have here that case. Nor do we have the usual problem of what constitutes "costs" in the conventional sense. Cf. 75 U. S. 8 Wall. 377. Our question concerns damages. Counsel fees were allowed in The Apollon, 9 Wheat. 362, 22 U. S. 379, an admiralty suit where one party was put to expense in recovering demurrage of a vessel wrongfully seized. While failure to give maintenance and cure may give rise to a claim for damages for the suffering and for the physical handicap which follows (The Iroquois, 194 U. S. 240), the recovery may also include "necessary expenses." Cortes v. Baltimore Insular Line, 287 U. S. 367, 287 U. S. 371.In the instant case, respondents were callous in their attitude, making no investigation of libellant's claim, and, Page 369 U. S. 531 by their silence, neither admitting nor denying it. As a result of that recalcitrance, libellant was forced to hire a lawyer and go to court to get what was plainly owed him under laws that are centuries old. The default was willful and persistent. It is difficult to imagine a clearer case of damages suffered for failure to pay maintenance than this one. [Footnote 3]IIMaintenance and cure is designed to provide a seaman with food and lodging when he becomes sick or injured in the ship's service, and it extends during the period when he is incapacitated to do a seaman's work, and continues until he reaches maximum medical recovery. The policy underlying the duty was summarized in Calmar S.S. Corp. v. Taylor, 303 U. S. 525, 303 U. S. 528:"The reasons underlying the rule, to which reference must be made in defining it, are those enumerated in the classic passage by Mr. Justice Story in Harden v. Gordon, Fed.Cas.No. 6047 (C.C.): The protection of seamen, who, as a class, are poor, friendless and improvident, from the hazards of illness and abandonment while ill in foreign ports; the inducement to masters and owners to protect the safety and health of seamen while in service; and maintenance of a merchant marine for the commercial service and maritime defense of the nation by inducing men to accept employment in an arduous and perilous service."Admiralty courts have been liberal in interpreting this duty "for the benefit and protection of seamen who are Page 369 U. S. 532 its wards." Id. at 303 U. S. 529. We noted in Aguilar v. Standard Oil Co., 318 U. S. 724, 318 U. S. 730, that the shipowner's liability for maintenance and cure was among "the most pervasive" of all and that it was not to be defeated by restrictive distinctions nor "narrowly confined." Id. at 318 U. S. 735. When there are ambiguities or doubts, they are resolved in favor of the seaman. Warren v. United States, 340 U. S. 523.Maintenance and cure differs from rights normally classified as contractual. As Mr. Justice Cardozo said in Cortes v. Baltimore Insular Line, supra, 287 U. S. 371, the duty to provide maintenance and cure [Footnote 4]"is imposed by the Page 369 U. S. 533 law itself as one annexed to the employment. . . . Contractual it is in the sense that it has its source in a relation which is contractual in origin, but, given the relation, no agreement is competent to abrogate the incident."In Johnson v. United States, 333 U. S. 46, we held that a seaman who, while an outpatient, was living on his parents' ranch without cost to himself was not entitled to maintenance payments. There, maintenance and cure was wholly provided by others. Here, the libellant was on his own for nearly two years, and required to work in order to survive. It would be a sorry day for seamen if shipowners, knowing of the claim for maintenance and cure, could disregard it, force the disabled seaman to work, and then evade part or all of their legal obligation by having it reduced by the amount of the sick man's earnings. This would be a dreadful weapon in the hands of unconscionable employers, and a plain inducement, as Chief Judge Sobeloff said below (291 F.2d at 820), to use the withholding of maintenance and cure as a means of forcing sick seamen to go to work when they should be resting, and to make the seamen themselves pay in whole or in part the amounts owing as maintenance and cure. This result is at war with the liberal attitude that heretofore has obtained and with admiralty's tender regard for seamen. We think the view of the Third Circuit (see Yates v. Dann, 223 F.2d 64, 67) is preferable to that of Page 369 U. S. 534 the Second Circuit as expressed in Wilson v. United States and Perez v. Suwanee S.S. Co., supra, and to that of the Fourth Circuit in this case.Reversed

U.S. Supreme CourtVaughan v. Atkinson, 369 U.S. 527 (1962)Vaughan v. AtkinsonNo. 323Argued March 22, 1962Decided May 14, 1962369 U.S. 527SyllabusPetitioner, a seaman, was discharged from respondents' ship at the end of a voyage, and the master gave him a certificate to enter a Public Health Service Hospital, which admitted him as an inpatient, treated him for suspected tuberculosis for several weeks and then treated him as an outpatient for over two years before declaring him fit for duty. When he was admitted to outpatient status, petitioner sent the shipowner an abstract of his medical record and requested payment for maintenance and cure, but his request was not complied with, and he worked as a taxi driver to support himself while receiving outpatient treatment. Finally he employed counsel and brought this suit in admiralty to recover (a) maintenance and cure, and (b) damages for failure to pay for maintenance and cure. The District Court awarded him maintenance, minus the amount of his earnings as a taxi driver, but denied him damages.Held:1. On the record in this case, petitioner was entitled to reasonable counsel fees as damages for failure to pay for maintenance. Pp. 369 U. S. 530-531.2. On the record in this case, petitioner was entitled to pay for maintenance without deduction of the amount of his earnings as a taxi driver. Pp. 369 U. S. 531-534.291 F.2d 813 reversed.

1959_350

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.The question here is whether Section 811(g)(2)(A) of the Internal Revenue Code of 1939 is constitutional as applied in this case. That section, the "payment of premiums" provision in the 1939 Code, requires inclusion Page 363 U. S. 195 of insurance proceeds in the gross estate of an insured where the proceeds are receivable by beneficiaries other than the executor, but are attributable to premiums paid by the insured. [Footnote 1] Inclusion is required regardless of whether the insured retained any policy rights. However, if the insured possessed no "incident of ownership" after January 10, 1941, the premiums paid by him before that date are excluded in determining the portion of the proceeds for which he paid the premiums. [Footnote 2] Page 363 U. S. 196The facts in the case are stipulated. The insured died testate on July 15, 1954. The taxpayer is his executor. On the estate tax return, the taxpayer included, as part of the gross estate, the proceeds of four insurance policies payable to the wife of the insured. These policies were originally issued to the insured, but he divested himself of the policy rights by assigning them to his wife on December 18, 1936. However, he continued to pay the premiums on the policies until he died. After his death, the proceeds were retained by the insurer for the benefit of the family, pursuant to the provisions of a settlement option selected by the wife.In auditing the return, the Revenue Service determined that only the portion of the proceeds attributable to premiums paid by the insured after January 10, 1941, should be included in his estate. [Footnote 3] Accordingly, the tax was adjusted, and a refund was made. The executor then filed a claim for refund of the rest of the tax attributable to the inclusion of the proceeds. The executor claimed that, because the decedent had divested himself of all interest in the policies in 1936, the tax constituted an unapportioned direct tax on property, invalid under Page 363 U. S. 197 Article I, Sections 2 and 9, of the Constitution. [Footnote 4] However, the Commissioner refused to allow the claim, and the present suit for refund followed. In the District Court, the executor added a claim that the tax is also invalid under the Due Process Clause of the Fifth Amendment "because it is retroactive, and discriminatory in its operation."The District Court sustained the taxpayer's contention that, as applied in this case, Section 811(g)(2)(A) is unconstitutional. It held that, because the decedent retained no incidents of ownership in the policies after 1936, "no transfer of the property herein sought to be included in the estate of this decedent occurred at the time of his death." The court concluded that the tax was therefore a direct tax on the proceeds themselves, and could not be levied without apportionment. [Footnote 5] 175 F. Supp. 291. The Government appealed directly to this Court under Sections 1252 and 2101 of Title 28, and we noted jurisdiction. 361 U.S. 880.The first objection to the tax is that it is a direct tax -- that is, that it is not a tax upon a transfer or other taxable Page 363 U. S. 198 event but is, instead, a tax upon property -- which Congress cannot exact without apportionment.This argument does not do justice to the evident intent of Congress to tax events, "as distinguished from [their] tangible fruits." Tyler v. United States, 281 U. S. 497, 281 U. S. 502. From its inception, the estate tax has been a tax on a class of events which Congress has chosen to label, in the provision which actually imposes the tax, "the transfer of the net estate of every decedent." [Footnote 6] (Emphasis added.) See New York Trust Co. v.Eisner, 256 U. S. 345. If there is any taxable event here which can fairly be said to be a "transfer" under this language in Section 810 of the 1939 Code, the tax is clearly constitutional without apportionment. For such a tax has always "been treated as a duty or excise, because of the particular occasion which gives rise to its levy." Knowlton v. Moore, 178 U. S. 41, 178 U. S. 81; New York Trust Co. v. Eisner, supra, at 256 U. S. 349.Under the statute, the occasion for the tax is the maturing of the beneficiaries' right to the proceeds upon the death of the insured. Of course, if the insured possessed no policy rights, there is no transfer of any interest from him at the moment of death. But that fact is not material, for the taxable "transfer," the maturing of the beneficiaries' right to the proceeds, is the crucial last step in what Congress can reasonably treat as a testamentary disposition by the insured in favor of the beneficiaries. That disposition, which began with the payment of premiums by the insured, is completed by his death. His death creates a genuine enlargement of the beneficiaries' rights. It is the "generating source" of the full value of the proceeds. See Schwarz v. United States, 170 F. Supp. 2, 6. The maturing of the right to proceeds is therefore Page 363 U. S. 199 an appropriate occasion for taxing the transaction to the estate of the insured. Cf. Tyler v. United States, 281 U. S. 497, 281 U. S. 503-504.There is no inconsistency between such a view of the taxable event and the basic definition of the subject of the tax in Section 810."Obviously, the word 'transfer' in the statute, or the privilege which may constitutionally be taxed, cannot be taken in such a restricted sense as to refer only to the passing of particular items of property directly from the decedent to the transferee. It must . . . at least include the transfer of property procured through expenditures by the decedent with the purpose, effected at his death, of having it pass to another."Chase National Bank v. United States, 278 U. S. 327, 278 U. S. 337.It makes no difference that the payment of premiums occurred during the lifetime of the insured and indirectly effected an inter vivos transfer of property to the owner of the policy rights. Congress can properly impose excise taxes on wholly inter vivos gifts. Bromley v. McCaughn, 280 U. S. 124. It may impose an estate tax on inter vivos transfers looking toward death. Milliken v. United States, 283 U. S. 15. Surely, then, it may impose such a tax on the final step -- the maturing of the right to proceeds -- in a partly inter vivos transaction completed by death. The question is not whether there has been, in the strict sense of the word, a "transfer" of property owned by the decedent at the time of his death, but whether"the death has brought into being or ripened for the survivor, property rights of such character as to make appropriate the imposition of a tax upon that result. . . ."Tyler v. United States, supra, at 281 U. S. 503.Therefore, this tax, laid on the "ripening," at death, of rights paid for by the decedent, is not a direct tax within the meaning of the Constitution. Cf. Chase National Bank v. United States, supra; 326 U. S. Wiener, 326 Page 363 U. S. 200 U.S. 340; Tyler v. United States, supra; United States v. Jacobs, 306 U. S. 363. [Footnote 7]Further objections to the statute as applied in this case are predicated on the Due Process Clause of the Fifth Amendment.It is said that the statute operates retroactively. But the taxable event -- the maturing of the policies at death -- occurred long after the enactment of Section 811(g)(2)(A) in 1942. Moreover, the payment of all but a few of the premiums in question occurred after the effective date of the statute, and those few were paid during the period after January 10, 1941, when regulations gave the insured fair notice of the likely tax consequences. See T.D. 5032, 1941-1 Cum.Bull. 427. [Footnote 8] Therefore, the statute cannot be said to be retroactive in its impact. It is not material that the policies were purchased and the policy rights were assigned before the statute was enacted. The tax is not laid on the creation or transfer of the policy rights, and it"does not operate retroactively merely because some of the facts or conditions upon which its application depends came into being prior to the enactment of the tax."United States v. Jacobs, supra, at 306 U. S. 367.The taxpayer argues, however, that the enactment of the statute subjected the insured to a choice between unpleasant alternatives:"[H]e could stop paying the Page 363 U. S. 201 premiums -- in which case, the policies would be destroyed; or, he could continue paying premiums -- in which case they would be included in his estate."But, when he gave away the policy rights, the possibility that he would eventually be faced with that choice was an obvious risk, in view of the administrative history of the "payment of premiums" test. See 1 Paul, Federal Estate and Gift Taxation, § 10.13. The executor should not complain because his decedent gambled and lost. And, while it may be true that the insured could have avoided the tax only at the price of a loss on an investment already made, that fact alone does not prove that the lawmakers did "a wholly arbitrary thing," or that they "found equivalence where there was none," or that they "laid a burden unrelated to privilege or benefit." Burnet v. Wells, 289 U. S. 670, 289 U. S. 679. Without such a showing, it cannot be held that the tax offends due process.Reversed

U.S. Supreme CourtUnited States v. Manufacturers Nat'l Bank, 363 U.S. 194 (1960)United States v. Manufacturers National Bank of DetroitNo. 350Argued March 31, 1960Decided June 13, 1960363 U.S. 194SyllabusIn 1936, respondent's decedent divested himself of his rights in certain insurance policies on his own life by assigning them to his wife, but he continued to pay the premiums on them until he died in 1954. The Internal Revenue Service determined that, under § 811(g)(2)(A) of the Internal Revenue Code of 1939, the portion of the proceeds attributable to premiums paid by the insured after January 10, 1941, should be included in his estate for the purposes of the federal estate tax.Held: as thus applied, § 811 (g)(2)(A) is constitutional. Pp. 363 U. S. 194-201.(a) The tax is not a direct tax on property which Congress cannot exact without apportionment among the States. Pp. 363 U. S. 197-200.(b) The tax is not retroactive, and does not violate the Due Process Clause of the Fifth Amendment. Pp. 363 U. S. 200-201.175 F. Supp. 291 reversed.

1965_535

MR. JUSTICE STEWART delivered the opinion of the Court.The question presented in this case is whether taxpayers engaged in the livestock business who use an accrual method of accounting for animals raised for sale may employ a cash method of accounting for animals raised for breeding purposes, in order to take advantage of a federal income tax benefit available to cash method taxpayers when breeding animals are sold.The respondents are ranchers engaged in the business of raising livestock for sale. As an important element of their business, the respondents maintain herds of livestock used for breeding purposes. During the taxable years in question, the respondents sold animals from their breeding herds and reported the gains from the sales in accord with the accrual method of accounting they had elected for their overall ranching operations. Subsequently, they filed claims with the Commissioner of Internal Revenue for partial tax refunds on the ground that they were entitled to use the more advantageous cash method of accounting in calculating the gain from sales of their breeding livestock. The Commissioner rejected Page 384 U. S. 104 the claims, and the respondents brought suit to obtain the refunds. Their claims were sustained by the District Court, [Footnote 1] and the judgments were affirmed by the Court of Appeals for the Fifth Circuit. [Footnote 2] We granted certiorari to resolve a conflict among the Circuits. [Footnote 3] We now reverse the judgments of the Court of Appeals.Section 1231 of the Internal Revenue Code of 1954, 26 U.S.C. § 1231, (1964 ed.), provides that, in certain circumstances, gains from the sale of property used by a taxpayer in his trade or business may be treated for federal income tax purposes as long-term capital gains. Section 1231(b)(3) makes the section specifically applicable to sales of livestock held for breeding purposes. [Footnote 4] No challenge Page 384 U. S. 105 is raised here to the classification of the animals sold by the respondents as livestock held for breeding purposes within the meaning of that provision. Our sole concern is with the measure of the respondents' capital gain.Each of the respondents elected the "unit livestock price" variant of the accrual method of accounting for his over-all ranching operation. [Footnote 5] Under that method, the Page 384 U. S. 106 respondents classified their livestock inventory by age and kind and assigned a standard unit price to the animals in each class. Both breeding animals and animals raised for sale were lumped together in the respondents' inventories, and the same unit prices were employed for both types of livestock. By multiplying the number of animals in each class by the unit price for the class, the opening and closing inventory valuations were readily calculated for each taxable year.The applicable Treasury Regulations grant a current deduction for the expenses incurred in raising livestock, without regard either for the purpose for which the animals are raised or for the method of accounting employed by the taxpayer. [Footnote 6] For ranchers who have elected the cash method of accounting, the current deduction is, of course, taken against ordinary income in the year the expense is paid. Since, as a result, the adjusted basis of the breeding animals at the time of sale is zero, the entire proceeds of the sales are reported as capital gains. Page 384 U. S. 107Because of the mechanics of the accrual method of accounting used by the respondents, however, their current deductions for the expenses of raising their livestock were offset by the annual increments in the unit inventory values of the animals not sold during the taxable year. [Footnote 7] The adjusted basis of the animals sold was therefore equal to the accumulated increments in their unit values, and only the proceeds of sale in excess of that basis were reported by the respondents as capital gain. [Footnote 8] Although the respondents' capital gain was lower than the gain they would have reported had they used the cash method of accounting, the reduction was achieved at the cost of annulling the current deduction from ordinary income of the expenses of raising their breeding livestock. As a result, the respondents' overall tax on their gains from the sale of breeding livestock was larger than it would have been had they used the cash method of accounting with respect to those animals. [Footnote 9] The Court of Page 384 U. S. 108 Appeals held in the present case that the respondents were not required to use the accrual method of accounting for their breeding livestock, and that they were therefore entitled to report the gains from the sales of those animals in accordance with the more advantageous cash method. [Footnote 10] We think the Court of Appeals was in error.The respondents' principal contention is that breeding livestock are simply not the type of asset that is properly Page 384 U. S. 109 includible in inventory. Just as manufacturers do not put capital equipment in inventory, so, respondents claim, they need not place their breeding livestock in inventory. Therefore, they say, the method of deferral of expenses worked for inventory-type assets by the mechanics of accrual accounting under Treas.Reg. (hereafter Reg.) § 1.61-4(b) [Footnote 11] is completely inapplicable to such livestock, because the animals should never have been placed in inventory in the first place. The result of freeing breeding livestock from the accounting procedure of Reg. § 1.61-4(b) would be to enable the respondents to obtain the benefits of the cash method, since the current deduction under Reg. § 1.162-12 would no longer be offset by the annual increments in the unit values of their breeding livestock.Although the contention of the respondents is not without force, we believe that the evolution of the statute and regulations here in question demonstrates that the expenses of raising breeding livestock were intended to be deferred by accrual method taxpayers. That interpretation of the legislative and administrative history is fully consonant with accounting logic, and we therefore conclude that the Commissioner should prevail.The general and longstanding rule for all taxpayers, whether they use the cash or accrual method of accounting, is that costs incurred in the acquisition, production, or development of capital assets, inventory, and other property used in the trade or business may not be currently deducted, but must be deferred until the year of sale, when the accumulated costs may be set off against the proceeds of the sale. [Footnote 12] Under general principles of Page 384 U. S. 110 accounting, therefore, it would be expected that expenses incurred by ranchers in raising breeding livestock should be charged to capital account, even though the ranchers employed the cash method of accounting.As early as 1919, however, in response to the specific need for a relatively more simplified method of farm accounting than was available even under the cash method as it then existed, the Secretary of the Treasury and the Commissioner of Internal Revenue promulgated Regulations expanding the cash method to authorize a current deduction for expenses incurred by farmers and ranchers in raising crops and animals. [Footnote 13] Although the question does not appear to have arisen, it is hardly likely that the Commissioner would have permitted accrual method ranchers, for whom the new procedure was not designed, selectively to apply the simplified cash method to their breeding livestock or any other part of their herds. At the time these Regulations were issued, and for more than two decades thereafter, gains from the Page 384 U. S. 111 sale of breeding livestock were taxed as ordinary income. [Footnote 14] Thus, the choice of accounting method affected only the timing of the deduction for the expenses of raising the animals, and no serious distortion of taxable income was introduced when ranchers elected the cash method for their breeding livestock. [Footnote 15] Throughout this period, no distinction appears to have been drawn between breeding and other livestock in the inventories maintained by ranchers using the more sophisticated accrual method of accounting. Indeed, since 1922, the Treasury Regulations have specifically contemplated that all livestock, whether raised for breeding or other purposes, were to be included in the inventory of accrual method ranchers. [Footnote 16]In 1942, however, Congress added § 117(j) to the Internal Revenue Code of 1939. [Footnote 17] That section, the Page 384 U. S. 112 progenitor of § 1231 of the 1954 Code, established capital gain treatment for the sale of "property used in the trade or business" of the taxpayer. The general language of the 1952 amendment left the tax status of breeding livestock in doubt, and the ensuing nine years found the Commissioner and ranchers jockeying for position on the treatment of gains from the sale of such animals. [Footnote 18] Congress resolved the controversy in 1951 by amending § 117(j) to make clear that capital gain treatment was to be accorded to gains from the sale of livestock raised for breeding purposes. [Footnote 19] Predictably, the amendment encouraged attempts by accrual method ranchers to transfer to the cash method of accounting. The Commissioner, however, refused to permit the changes where Page 384 U. S. 113 it appeared that the sole motivation for the shift was to reap the capital gain windfall available to cash method ranchers. [Footnote 20]The issue raised by the respondents ultimately centers on the validity of Reg. § 1.471-6(f), which requires that a"taxpayer who elects to use the 'unit livestock price method' must apply it to all livestock raised, whether for sale or for . . . breeding . . . purposes."That provision is neither arbitrary nor inconsistent with the revenue statute, or with other regulations under the statute. The unit livestock price method is soundly grounded in accepted principles of accounting. It has been specifically recognized by the tax laws as a valid approach to livestock accounting for more than 20 years. [Footnote 21] Moreover, as the practice of the respondents indicates, the expenses incurred in the production and development of their livestock were essentially the same, whether the animals were raised for sale or for breeding purposes, and the unit livestock price method of accounting provided convenient and efficient annual estimates of those expenses. There can thus be no question that the Page 384 U. S. 114 respondents' accounting method accurately reflected their income.Were we concerned, therefore, solely with the applicability to breeding livestock of the unit livestock price method of accounting, we would be unable to characterize as arbitrary the Commissioner's refusal to permit the change the respondents seek. Congress has granted the Commissioner broad discretion in shepherding the accounting methods used by taxpayers, [Footnote 22] and the uniform application of the unit livestock price method to the respondents' entire livestock operation is a reasonable exercise of the discretion rested by Congress in the Secretary and the Commissioner for the administration of the tax laws. "It is not the province of the court to weigh and determine the relative merits of systems of accounting." Brown v. Helvering, 291 U. S. 193, 291 U. S. 204-205; Lucas v. American Code Co., 280 U. S. 445, 280 U. S. 449; Automobile Club of Michigan v. Commissioner, 353 U. S. 180, 353 U. S. 189-190; Commissioner v. Hansen, 360 U. S. 446, 360 U. S. 467; Schlude v. Commissioner, 372 U. S. 128, 372 U. S. 133-135.The issue in the present case, however, is complicated by the substantial tax differential worked by the Treasury Page 384 U. S. 115 Regulations in favor of cash method ranchers and against accrual method ranchers when breeding livestock are sold. It is the position of the Commissioner that the Treasury Department is unable by administrative action to require cash method ranchers to capitalize the expenses incurred in raising their breeding livestock. [Footnote 23] The respondents contend that, so long as the present dichotomy is maintained, they are entitled to participate in the benefits available under the cash method.We need not determine whether, in all cases, the Commissioner may legitimately refuse to acquiesce in the transition by ranchers from the accrual method to the cash method of accounting. The Commissioner is not, of course, obliged to permit taxpayers to shift their accounting methods to accommodate every fluctuation in the revenue laws. Helvering v. Wilshire Oil Co., 308 U. S. 90, 308 U. S. 97; Commissioner v. South Texas Lumber Co., 333 U. S. 496. We may assume arguendo that particular legislative or administrative mutations in the tax laws Page 384 U. S. 116 may foster inequities so great between taxpayers similarly situated that the Commissioner could not legitimately reject a proposed change in accounting method unless the taxpayer had exercised a meaningful choice at the time he selected his contemporary method. No such substantial inequity is presented here. The respondents have not sought to embrace the cash method of accounting for their entire ranching operation. To the contrary, they ask that they be permitted to subject only their breeding livestock to that method. Thus, they propose to retain the advantages of the accrual method for their livestock raised for sale.It is clear that application of the cash method of accounting to sales of breeding livestock would substantially distort the economic picture of the respondents' ranching operations. [Footnote 24] The sacrifice in accounting accuracy under the cash method represents an historical concession by the Secretary and the Commissioner to provide a unitary and expedient bookkeeping system for farmers and ranchers in need of a simplified accounting procedure. A concomitant of the special dispensation that has been made available to cash method ranchers is the favorable capital gain treatment that results whenever breeding livestock are sold. The respondents, however, have demonstrated their intent to retain the accuracies of the unit livestock price method of accounting for animals they have raised for sale. That method was itself introduced as a special concession to accrual method ranchers, who were thereby enabled to avoid the difficulties of establishing the actual costs of raising their livestock. The respondents' desire to shift from the unit livestock price accrual method to the cash method for their breeding livestock is therefore divorced from the sole rationale for which each of those accounting Page 384 U. S. 117 methods was made available. By selectively combining attributes of both methods, the respondents seek to fashion a hybrid system that would defeat the Commissioner's goal of providing a unitary accounting method for all taxpayers. It clearly lay within the discretion of the Commissioner to reject such a hybrid system of accounting, and the Court of Appeals was in error in accepting the respondents' claims. See Niles Bement Pond Co. v. United States, 281 U. S. 357, 281 U. S. 360; Commissioner v. South Texas Lumber Co., 333 U. S. 496, 333 U. S. 503-504; Commissioner v. Hansen, 360 U. S. 446, 360 U. S. 467; Little v. Commissioner, 294 F.2d 661, 664 (C.A.9th Cir.); Carter v. Commissioner, 257 F.2d 595, 600 (C.A.5th Cir.); SoRelle v. Commissioner, 22 T.C. 459, 468-469.The judgments are therefore reversed, and the case is remanded to the Court of Appeals for the Fifth Circuit for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtUnited States v. Catto, 384 U.S. 102 (1966)United States v. CattoNo. 535Argued March 22-23, 1966Decided April 26, 1966384 U.S. 102SyllabusRespondents are ranchers who raise livestock for sale and maintain herds for breeding purposes. They sold animals from the breeding herds and reported capital gains therefrom on their federal tax returns in accord with the "unit livestock price" variant of the accrual method of accounting they had selected for their overall ranching operations. They filed refund claims with the Commissioner of Internal Revenue on the ground that they were entitled to use the more advantageous cash method of accounting in computing gain from sales of breeding stock. Respondents challenged the validity of Treas.Reg. § 1.471-6(f), which requires that a taxpayer who elects to use the "unit livestock price" method must apply it to all livestock raised, whether for sale or breeding purposes. The Commissioner rejected their claims, but was overruled by the District Court and the Court of Appeals.Held: taxpayers employing an accrual method of accounting for their overall ranching operation may not use a cash method of accounting for their breeding livestock. Pp. 384 U. S. 109-117.(a) Legislative and administrative history, which are consonant with accounting logic, demonstrate that the expenses of raising breeding stock were intended to be deferred by accrual method taxpayers.(b) Congress resolved the controversy over the treatment of gains on sales of breeding stock in 1951 by amending § 117(j) of the Internal Revenue Code of 1939 to make clear that such gains were entitled to capital gains treatment. P. 384 U. S. 112.(c) The "unit livestock price" method is sound accounting practice, and its uniform application to respondents' entire livestock operations is a reasonable exercise of the Commissioner's discretion. Pp. 384 U. S. 113-114.(d) The application of the cash method of accounting solely to sales of breeding animals while retaining the accrual method for animals raised for sale would create a hybrid and distorted system which would defeat the Commissioner's goal of providing a unitary Page 384 U. S. 103 accounting method for all taxpayers, and it was within his discretion to reject such hybrid system. Pp. 384 U. S. 116-117.344 F.2d 225, 227, reversed and remanded.

1997_97-643

proper because the mailings were completed in that State. By contrast, the counts here at issue allege no conspiracy, but describe activity in which Cabrales alone engaged. Nor do they charge that she dispatched any missive from one State into another; instead, they portray her and the money she deposited and withdrew as moving inside Florida only. Finally, the Court rejects the Government's contention that efficiency warrants trying Cabrales in Missouri because evidence there, and not in Florida, shows that the money she allegedly laundered derived from unlawful activity. The Government is not disarmed from showing that Cabrales is in fact linked to the drug trafficking. She can be, and indeed has been, charged with conspiring with the drug dealers in Missouri. If the Government can prove the agreement it has alleged in Count I, Cabrales can be prosecuted in Missouri for that confederacy, and her Florida money laundering could be shown as overt acts in furtherance of the conspiracy. See § 371. As the Government acknowledged, the difference in her sentence probably would be negligible. Pp.6-10.109 F.3d 471 and 115 F.3d 621, affirmed.GINSBURG, J., delivered the opinion for a unanimous Court.Malcolm L. Stewart argued the cause for the United States. With him on the briefs were Solicitor General Waxman, Acting Assistant Attorney General Keeney, Deputy Solicitor General Dreeben, and Daniel S. Goodman.John W Rogers, by appointment of the Court, 522 U. S. 1106, argued the cause and filed a brief for respondent. *JUSTICE GINSBURG delivered the opinion of the Court. This case presents a question of venue, specifically, the place appropriate for trial on charges of money laundering in violation of 18 U. S. C. § 1956(a)(1)(B)(ii) (conducting a financial transaction to avoid a transaction-reporting requirement) and § 1957 (engaging in a monetary transaction in criminally derived property of a value greater than $10,000). The laundering alleged in the indictment occurred entirely in Florida. The currency purportedly laundered derived* Steven Wisotsky and Lisa B. Kemler filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae urging affirmance.4from the unlawful distribution of cocaine in Missouri. The defendant, respondent Vickie S. Cabrales, is not alleged to have transported funds from Missouri to Florida. Nor is she charged, in the counts before us, with participation in the Missouri cocaine distribution that generated the funds in question. In accord with the Court of Appeals for the Eighth Circuit, we hold that Missouri is not a proper place for trial of the money-laundering offenses at issue.IIn a three-count indictment returned in the United States District Court for the Western District of Missouri, Cabrales, as sole defendant, was charged with the following offenses: conspiracy to avoid a transaction-reporting requirement, in violation of 18 U. S. C. §§ 371, 1956(a)(1)(B)(ii) (Count I); conducting a financial transaction to avoid a transaction-reporting requirement, in violation of § 1956 (a)(l)(B)(ii) (Count II); and engaging in a monetary transaction in criminally derived property of a value greater than $10,000, in violation of § 1957 (Count III). The indictment alleged that, in January 1991, Cabrales deposited $40,000 with the AmSouth Bank of Florida and, within a week's span, made four separate withdrawals of $9,500 each from that bank. The money deposited and withdrawn was traceable to illegal sales of cocaine in Missouri.Cabrales moved to dismiss the indictment in its entirety for improper venue. On recommendation of the Magistrate, the District Court denied the motion as to Count I, the conspiracy count, based on the Government's assertions that Cabrales "was present in Missouri during the conspiracy, lived with a conspirator in Missouri, and participated in various activities in Missouri in furtherance of the conspiracy." App. to Pet. for Cert. lla, 14a-15a. Also on the Magistrate's recommendation, the District Court granted the motion to dismiss Counts II and III, the money-laundering counts, because the deposit and withdrawals occurred in Florida and5"[n]o activity of money laundering ... occurred in Missouri." Id., at 11a, 14a.On the Government's appeal, the Eighth Circuit affirmed the District Court's dismissal of the money-laundering counts. 109 F.3d 471, as amended, 115 F.3d 621 (CA81997). The conspiracy charge was not part of the appeal, and that count remains pending in the Missouri District Court. 109The Court of Appeals first recounted law that is not in doubt: "Both Rule 18 of the Federal Rules of Criminal Procedure and the Constitution require that a person be tried for an offense where that offense is committed," 109 F. 3d, at 472; also, the site of a charged offense" 'must be determined from the nature of the crime alleged and the location of the act or acts constituting it,'" ibid. (quoting United States v. Anderson, 328 U. S. 699,703 (1946)). "Continuing offenses," the Court of Appeals recognized, those "begun in one district and completed in another," 18 U. S. C. § 3237(a), may be tried " 'in any district in which such [an] offense was begun, continued, or completed.''' 109 F. 3d, at 472 (quoting § 3237(a)).But "Cabrales was not accused of a 'continuing offense,'" the Eighth Circuit said, ibid.; "[s]he was charged with money laundering, for transactions which began, continued, and were completed only in Florida," ibid. "That the money came from Missouri is of no moment," the Court of Appeals next observed, for "Cabrales dealt with it only in Florida." Ibid. The money-laundering counts "include[d] no act committed by Cabrales in Missouri," the Eighth Circuit emphasized, nor did "the [G]overnment charge that Cabrales transported the money from Missouri to Florida." Ibid.The Government urges that, in conflict with the Eighth Circuit, other Courts of Appeals "have held that venue for money laundering offenses is proper in the district in which the funds were unlawfully generated, even if the financial transaction that constitutes the laundering occurred wholly within another district." Pet. for Cert. 9-10 (citing United6States v. Heaps, 39 F.3d 479, 482 (CA4 1994); United States v. Beddow, 957 F.2d 1330, 1335-1336 (CA6 1992); United States v. Sax, 39 F.3d 1380, 1390-1391 (CA7 1994); United States v. Angotti, 105 F.3d 539, 544-545 (CA9 1997)). We granted certiorari to resolve the conflict, 522 U. S. 1072 (1998), and now affirm the Eighth Circuit's judgment.IIProper venue in criminal proceedings was a matter of concern to the Nation's founders. Their complaints against the King of Great Britain, listed in the Declaration of Independence, included his transportation of colonists "beyond Seas to be tried." 1 The Constitution twice safeguards the defendant's venue right: Article III, § 2, cl. 3, instructs that "Trial of all Crimes ... shall be held in the State where the said Crimes shall have been committed"; the Sixth Amendment calls for trial "by an impartial jury of the State and district wherein the crime shall have been committed." Rule 18 of the Federal Rules of Criminal Procedure, providing that "prosecution shall be had in a district in which the offense was committed," echoes the constitutional commands.We adhere to the general guide invoked and applied by the Eighth Circuit: "[T]he locus delicti must be determined1 The Declaration recited among injuries and usurpations attributed to the King: "transporting us beyond Seas to be tried for pretended offences." The Declaration of Independence, para. 21 (1776). A complaint of the same tenor appeared earlier, in the 1769 "Virginia Resolves." See Blume, The Place of Trial of Criminal Cases: Constitutional Vicinage and Venue, 43 Mich. L. Rev. 59, 64 (1944). Parliament had decreed that colonists charged with treason could be tried in England. See 16 Parliamentary History of England from the Earliest Period to Year 1803, pp. 476-510 (T. Hansard ed. 1813). In response, the Virginia House of Burgesses unanimously passed a resolution condemning the practice of sending individuals "beyond the Sea, to be tried" as "highly derogatory of the Rights of British subjects." Journals of the House of Burgesses of Virginia, 1766-1769, p. 214 (J. Kennedy ed. 1906).7from the nature of the crime alleged and the location of the act or acts constituting it." Anderson, 328 U. S., at 703. Here, the crimes described in Counts II and III are defined in statutory proscriptions, 18 U. S. C. §§ 1956(a)(1)(B)(ii), 1957, that interdict only the financial transactions (acts located entirely in Florida), not the anterior criminal conduct that yielded the funds allegedly laundered.Congress has provided by statute for offenses "begun in one district and completed in another"; such offenses may be "prosecuted in any district in which [the] offense was begun, continued, or completed." 18 U. S. C. § 3237(a). The Government urges that the money-laundering crimes described in Counts II and III of the indictment against Cabrales fit the § 3237(a) description. We therefore confront and decide this question: Do those counts charge crimes begun in Missouri and completed in Florida, rendering venue proper in Missouri, or do they delineate crimes that took place wholly within Florida?Notably, the counts at issue do not charge Cabrales with conspiracy; they do not link her to, or assert her responsibility for, acts done by others. Nor do they charge her as an aider or abettor in the Missouri drug trafficking. See 18 U. S. C. § 2 (one who aids or abets an offense "is punishable as a principal"). Cabrales is charged in the money-laundering counts with criminal activity "after the fact" of an offense begun and completed by others. Cf. § 3 ("Whoever, knowing that an offense against the United States has been committed, ... assists the offender in order to hinder or prevent his ... punishment, is an accessory after the fact," punishable not as a principal, but by a term of imprisonment or fine generally "not more than one-half the maximum ... prescribed for the punishment of the principal[.]").Whenever a defendant acts "after the fact" to conceal a crime, it might be said, as the Government urges in this case, that the first crime is an essential element of the second, see Brief for United States 9, and that the second8facilitated the first or made it profitable by impeding its detection, see id., at 14. But the question here is the place appropriate to try the "after the fact" actor. As the Government recognizes, it is immaterial whether that actor knew where the first crime was committed. See Tr. of Oral Arg. 5-6. The money launderer must know she is dealing with funds derived from "specified unlawful activity," here, drug trafficking, but the Missouri venue of that activity is, as the Eighth Circuit said, "of no moment." 109 F. 3d, at 472.2Money laundering, the Court of Appeals acknowledged, arguably might rank as a "continuing offense," triable in more than one place, if the launderer acquired the funds in one district and transported them into another. Id., at 473. But that is tellingly not this case. In the counts at issue, the Government indicted Cabrales "for transactions which began, continued, and were completed only in Florida." Id., at 472. Under these circumstances, venue in Missouri is improper.The Government identified Hyde v. United States, 225 U. S. 347 (1912), and In re Palliser, 136 U. S. 257 (1890), as the two best cases for its position that money launderers can in all cases be prosecuted at the place where the funds they handled were generated. See Tr. of Oral Arg. 6. Neither decision warrants the ruling the Government here seeks.In Hyde, the defendants were convicted in the District of Columbia of conspiracy to defraud the United States. Although none of the defendants had entered the District as part of the conspiracy, venue was nevertheless appropriate, the Court ruled, based on the overt acts of a co-conspirator there. 225 U. S., at 363. By contrast, the counts at issue in this case allege no conspiracy. They describe activity in which Cabrales alone, untied to others, engaged.2 Cf. United States v. Lanoue, 137 F.3d 656, 661 (CAI1998) (stating that crime of being a felon in possession of a firearm, in violation of 18 U. S. C. § 922(g)(I), occurs only where the firearm is actually possessed).9In re Palliser concerned a man who sent letters from New York to postmasters in Connecticut, attempting to gain postage on credit, in violation of then-applicable law. The Court held that the defendant could be prosecuted in Connecticut, where the mail he addressed and dispatched was received. 136 U. S., at 266-268. The Palliser opinion simply recognizes that a mailing to Connecticut is properly ranked as an act completed in that State. Cf. 18 U. S. C. § 3237(a) ("Any offense involving the use of the mails ... is a continuing offense and ... may be ... prosecuted in any district from, through, or into which such ... mail matter ... moves."); United States v. Johnson, 323 U. S. 273, 275 (1944) (consistent with the Constitution "an illegal use of the mails ... may subject the user to prosecution in the district where he sent the goods, or in the district of their arrival, or in any intervening district"). Cabrales, however, dispatched no missive from one State into another. The counts before us portray her and the money she deposited and withdrew as moving inside Florida only.Finally, the Government urges the efficiency of trying Cabrales in Missouri, because evidence in that State, and not in Florida, shows that the money Cabrales allegedly laundered derived from unlawful activity. Although recognizing that the venue requirement is principally a protection for the defendant, Reply Brief 10, the Government further maintains that its convenience, and the interests of the community victimized by drug dealers, merit consideration.But if Cabrales is in fact linked to the drug-trafficking activity, the Government is not disarmed from showing that is the case. She can be, and indeed has been, charged with conspiring with the drug dealers in Missouri. If the Government can prove the agreement it has alleged, Cabrales can be prosecuted in Missouri for that confederacy, and her money laundering in Florida could be shown as overt acts in furtherance of the conspiracy. See 18 U. S. C. § 371 (requiring proof of an "act to effect the object of the conspiracy").10As the Government acknowledged, the difference in the end result "probably ... would be negligible." Tr. of Oral Arg. 52; see United States Sentencing Commission, Guidelines Manual § 1B1.3 (Nov. 1995) (providing for consideration of "Relevant Conduct" in determining sentence).***We hold that Missouri is not a place of proper venue for the money-laundering offenses with which Cabrales is charged. For the reasons stated, the judgment of the Court of Appeals for the Eighth Circuit isAffirmed

CASES ADJUDGEDIN THESUPREME COURT OF THE UNITED STATESATOCTOBER TERM, 1997SyllabusUNITED STATES v. CABRALESCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUITNo. 97-643. Argued April 29, 1998-Decided June 1, 1998An indictment returned in the United States District Court for the Western District of Missouri charged respondent Cabrales, as sole defendant, with conspiracy under 18 U. S. C. § 371 to violate § 1956(a)(1)(B)(ii) (conducting a financial transaction to avoid a transaction-reporting requirement) (Count I), and with money laundering in violation of the latter section (Count II) and § 1957 (engaging in a monetary transaction in criminally derived property of a value greater than $10,000) (Count III). The indictment alleged that, in January 1991, Cabrales deposited $40,000 with the AmSouth Bank of Florida and, within a week, made four separate $9,500 withdrawals from that bank. The money deposited and withdrawn was traceable to illegal cocaine sales in Missouri. Cabrales moved to dismiss the indictment in its entirety for improper venue. The District Court denied the motion as to Count I, the conspiracy count, but dismissed Counts II and III, the moneylaundering counts, because the money-laundering activity occurred entirely in Florida. In affirming that dismissal, the Eighth Circuit noted that the Constitution, Art. III, § 2, cl. 3, and Arndt. 6, as well as Federal Rule of Criminal Procedure 18, requires that a person be tried where the charged offense was committed. While recognizing that a continuing offense "begun in one district and completed in another ... may be ... prosecuted in any district in which such offense was begun, continued, or completed," 18 U. S. C. § 3237(a), the court said that Cabrales was not accused of a continuing offense, but was charged with2Syllabusmoney-laundering transactions that began, continued, and were completed only in Florida. It was of no moment that the money came from Missouri, the court explained, because Cabrales dealt with it only in Florida, the money-laundering counts alleged no act committed by Cabrales in Missouri, and the Government did not assert that Cabrales transported the money from Missouri to Florida.Held: Missouri is not a place of proper venue for the money-laundering offenses with which Cabrales is charged. The locus delicti must be determined from the nature of the crime alleged and the location of the act or acts constituting it. United States v. Anderson, 328 U. S. 699, 703. Here, the crimes charged in Counts II and III are defined in statutory proscriptions, §§ 1956(a)(I)(B)(ii) and 1957, that interdict only the financial transactions (acts located entirely in Florida), not the anterior criminal conduct that yielded the funds allegedly laundered. Contrary to the Government's contention, the crimes charged in those counts do not fit under § 3237(a) as offenses begun in Missouri and completed in Florida, but are crimes that took place wholly within Florida. Notably, the counts at issue do not charge Cabrales with conspiracy; they do not link her to, or assert her responsibility for, acts done by others. Nor do they charge her as an aider or abettor, punishable as a principal, in the Missouri drug trafficking, see 18 U. S. C. § 2. Rather, those counts charge her with criminal activity "after the fact" of an offense begun and completed by others. Cf. § 3. Whenever a defendant acts "after the fact" to conceal a crime, it might be said, as the Government urges, that the first crime is an essential element of the second, and that the second facilitated the first or made it profitable by impeding its detection. But the question here is the place appropriate to try the "after the fact" actor. It is immaterial whether that actor knew where the first crime was committed. The money launderer must know she is dealing with funds derived from specified unlawful activity, here, drug trafficking, but the Missouri venue of that activity is, as the Eighth Circuit said, of no moment. Money laundering arguably might rank as a continuing offense, triable in more than one place, if the launderer acquired the funds in one district and transported them into another, but that is tellingly not this case. Neither Hyde v. United States, 225 U. S. 347, nor In re Palliser, 136 U. S. 257, supports the Government's position that money launderers can in all cases be prosecuted at the place where the funds they handled were generated. Hyde involved a conspiracy prosecution in which the Court held venue proper in the District of Columbia based on overt acts committed by a co-conspirator in the District. Palliser concerned a prosecution for mailings from New York to Connecticut in which the Court held Connecticut venue3Full Text of Opinion

1994_93-7407

James A. Feldman argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Days, Assistant Attorney General Harris, and Deputy Solicitor General Wallace. *JUSTICE BREYER delivered the opinion of the Court. Reviewing courts normally disregard trial errors that are harmless. This case asks us to decide whether a federal ha-*Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union et al. by Larry W Yackle, Steven R. Shapiro, and James S. Liebman; and for Timothy Scott Sherman by Andrew L. Frey, Roy T. Englert, Jr., James G. Duncan, and Stuart J. Robinson.A brief of amici curiae urging affirmance was filed for the State of Maryland et al. by J. Joseph Curran, Jr., Attorney General of Maryland, Tarra DeShields-Minnis, Assistant Attorney General, and Eleni M. Constantine, and by the Attorneys General for their respective jurisdictions as follows: James H. Evans of Alabama, Bruce M. Botelho of Alaska, Grant Woods of Arizona, Winston Bryant of Arkansas, Daniel E. Lungren of California, Gale H. Norton of Colorado, John M. Bailey of Connecticut, Charles Oberly of Delaware, Robert A. Butterworth of Florida, Michael J. Bowers of Georgia, Robert A. Marks of Hawaii, Larry EchoHawk of Idaho, Roland W Burris of Illinois, Pamela Carter of Indiana, Bonnie J. Campbell of Iowa, Robert T. Stephan of Kansas, Chris Gorman of Kentucky, Richard P. Ieyoub of Louisiana, Michael E. Carpenter of Maine, Scott Harshbarger of Massachusetts, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Mike Moore of Mississippi, Jeremiah (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, Deborah T. Poritz of New Jersey, Tom Udall of New Mexico, G. Oliver Koppel of New York, Michael F. Easley of North Carolina, Susan B. Loving of Oklahoma, Theodore R. Kulongoski of Oregon, Ernest D. Preate, Jr., of Pennsylvania, Pedro R. Pierluisi of Puerto Rico, Jeffrey B. Pine of Rhode Island, T. Travis Medlock of South Carolina, Mark Barnett of South Dakota, Charles Burson of Tennessee, Dan Morales of Texas, Jan Graham of Utah, Jeffrey L. Amestoy of Vermont, Rosalie Simmonds Ballentine of the Virgin Islands, James S. Gilmore III of Virginia, Christine O. Gregoire of Washington, Darrell V. McGraw, Jr., of West Virginia, James E. Doyle of Wisconsin, and Joseph B. Meyer of Wyoming.Lawrence J. Fleming and Harry R. Reinhart filed a brief for the N ational Association of Criminal Defense Lawyers et al. as amici curiae.435beas court should consider a trial error harmless when the court (1) reviews a state-court judgment from a criminal trial, (2) finds a constitutional error, and (3) is in grave doubt about whether or not that error is harmless. We recognize that this last mentioned circumstance, "grave doubt," is unusual. Normally a record review will permit a judge to make up his or her mind about the matter. And indeed a judge has an obligation to do so. But we consider here the legal rule that governs the special circumstance in which record review leaves the conscientious judge in grave doubt about the likely effect of an error on the jury's verdict. (By "grave doubt" we mean that, in the judge's mind, the matter is so evenly balanced that he feels himself in virtual equipoise as to the harmlessness of the error.) We conclude that the uncertain judge should treat the error, not as if it were harmless, but as if it affected the verdict (i. e., as if it had a "substantial and injurious effect or influence in determining the jury's verdict").IRobert O'Neal filed a federal habeas corpus petition challenging his state-court convictions for murder and other crimes. The Federal District Court agreed with several of his claims of constitutional trial error. On appeal the Sixth Circuit disagreed with the District Court, with one important exception. That exception focused on possible jury "confusion" arising out of a trial court instruction about the state of mind necessary for conviction combined with a related statement by a prosecutor. The Sixth Circuit assumed, for argument's sake, that the instruction (taken together with the prosecutor's statement) had indeed violated the Federal Constitution by misleading the jury. Nonetheless, the court disregarded the error on the ground that it was "harmless." O'Neal v. Morris, 3 F.3d 143, 147 (1993).The court's opinion sets forth the standard normally applied by a federal habeas court in deciding whether or not this kind of constitutional "trial" error is harmless, namely,436whether the error'" "had substantial and injurious effect or influence in determining the jury's verdict."'" Id., at 145 (quoting Brecht v. Abrahamson, 507 U. S. 619, 627 (1993) (quoting, and adopting, standard set forth in Kotteakos v. United States, 328 U. S. 750, 776 (1946))). But, rather than ask directly whether the record's facts satisfied this standard, the court seemed to refer to a burden of proof. Its opinion says that the habeas petitioner must bear the "burden of establishing" whether the error was prejudicial. 3 F. 3d, at 145. As a practical matter, this statement apparently means that, if a judge is in grave doubt about the effect on the jury of this kind of error, the petitioner must lose. Thus, O'Neal might have lost in the Court of Appeals, not because the judges concluded that the error was harmless, but because the record of the trial left them in grave doubt about the effect of the error.This Court granted certiorari to decide what the law requires in such circumstances. We repeat our conclusion:When a federal judge in a habeas proceeding is in grave doubt about whether a trial error of federal law had "substantial and injurious effect or influence in determining the jury's verdict," that error is not harmless. And, the petitioner must win.IIAs an initial matter, we note that we deliberately phrase the issue in this case in terms of a judge's grave doubt, instead of in terms of "burden of proof." The case before us does not involve a judge who shifts a "burden" to help control the presentation of evidence at a trial, but rather involves a judge who applies a legal standard (harmlessness) to a record that the presentation of evidence is no longer likely to affect. In such a case, we think it conceptually clearer for the judge to ask directly, "Do I, the judge, think that the error substantially influenced the jury's decision?" than for the judge to try to put the same question in terms437of proof burdens (e. g., "Do I believe the party has borne its burden of showing ... ?"). As Chief Justice Traynor said:"Whether or not counsel are helpful, it is still the responsibility of the ... court, once it concludes there was error, to determine whether the error affected the judgment. It must do so without benefit of such aids as presumptions or allocated burdens of proof that expedite fact-finding at the trial." R. Traynor, The Riddle of Harmless Error 26 (1970) (hereinafter Traynor).The case may sometimes arise, however, where the record is so evenly balanced that a conscientious judge is in grave doubt as to the harmlessness of an error. See id., at 22-23. This is the narrow circumstance we address here.IIIOur legal conclusion-that in cases of grave doubt as to harmlessness the petitioner must win-rests upon three considerations. First, precedent supports our conclusion. As this Court has stated, "the original common-law harmlesserror rule put the burden on the beneficiary of the error [here, the State] ... to prove that there was no injury .... " Chapman v. California, 386 U. S. 18, 24 (1967) (citing 1 J. Wigmore, Evidence § 21 (3d ed. 1940)). When this Court considered the doubt-as-to-harmlessness question in the context of direct review of a nonconstitutional trial error, it applied the same rule. In Kotteakos v. United States, the Court wrote:"If, when all is said and done, the [court's] conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand .... But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to438conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand." 328 U. S., at 764765 (emphasis added).Id., at 776 (holding that error is not harmless if it had "substantial and injurious effect or influence" upon the jury). That is to say, if a judge has "grave doubt" about whether an error affected a jury in this way, the judge must treat the error as if it did so. See also United States v. Olano, 507 U. S. 725, 741 (1993) (stating that under Federal Rule of Criminal Procedure 52(a) the Government bears the "burden of showing the absence of prejudice"); United States v. Lane, 474 U. S. 438, 449 (1986) (quoting Kotteakos as providing the proper harmless-error standard in cases of misjoinder and quoting" 'grave doubt'" language).When this Court considered the same question in the context of direct review of a constitutional trial error, it applied the same rule. See Chapman, 386 U. S., at 24 (holding that error is harmless only if "harmless beyond a reasonable doubt"). Indeed, the Chapman Court wrote that "constitutional error ... casts on someone other than the person prejudiced by it a burden to show that it was harmless." Ibid.We must concede that in Brecht v. Abrahamson this Court, in the course of holding that the more lenient Kotteak os harmless-error standard, rather than the stricter Chapman standard, normally governs cases of habeas review of constitutional trial errors, stated that habeas petitioners "are not entitled to habeas relief based on trial error unless they can establish that it resulted in 'actual prejudice.'" Brecht, 507 U. S., at 637 (emphasis added). This language, however, is not determinative. The issue in Brecht involved a choice of substantive harmless-error standards: the stricter Chapman, or the less strict Kotteakos,439measure of harmlessness. Both of those cases had resolved the issue now before us the same way, placing the risk of doubt on the State. Moreover, the sentence from Brecht quoted above appears in a paragraph that adopts the very Kotteakos standard that we now apply. That paragraph does not explain why the Court would make an exception to the "grave doubt" portion of the Kotteakos standard. Furthermore, the Brecht opinion, in this respect, did not speak for a Court majority. Four Members of the Court, supporting application of Chapman's standard, dissented. And JusTICE STEVENS, while a Member of the majority, stated explicitly that the Kotteakos standard applied in its entirety. 507 U. S., at 640 (concurring opinion) (agreeing, in part, because that standard "places the burden on prosecutors to explain why those errors were harmless").We further acknowledge that this Court, in Palmer v.Hoffman, 318 U. S. 109 (1943), said:"He who seeks to have a judgment set aside because of an erroneous ruling carries the burden of showing that prejudice resulted." Id., at 116.But this pre-Kotteakos language, in context, referred to what the preceding sentence in Palmer described as "[m]ere 'technical errors.'" 318 U. S., at 116. Kotteakos itself makes clear that "technical errors" may be different. It quotes an excerpt from the House Report accompanying the harmless-error statute (then 28 U. S. C. § 391) that says the statute casts" 'upon the party seeking a new trial the burden of showing that any technical errors that he may complain of have affected his substantial rights.'" Kotteakos, 328 U. S., at 760 (quoting H. R. Rep. No. 913, 65th Cong., 3d Sess., 1 (1919)).The Report, however, (as Kotteakos immediately points out) goes on to say that if the error is not "technical," if, instead,440"'the error is of such a character that its natural effect is to prejudice a litigant's substantial rights, [then] the burden of sustaining a verdict will, notwithstanding this legislation rest upon the one who claims under it.'" H. R. Rep. No. 913, supra, at 1.The "grave doubt" language of Kotteakos itself makes clear that important trial errors, including any "constitutional violation, ... fall in" this last mentioned category, and not "in the 'technical' category" that the House Report described. Brecht, supra, at 641 (STEVENS, J., concurring); see Bruno v. United States, 308 U. S. 287, 294 (1939) (Frankfurter, J.) (describing technical errors as those concerned with the "mere etiquette of trials and with the formalities and minutiae of procedure").We also have examined the precedent upon which the State relies to support its view that appellants bear a "burden" of showing "prejudice" in civil cases. See, e. g., Erskine v. Consolidated Rail Corp., 814 F.2d 266 (CA6 1987); Flanigan v. Burlington Northern Inc., 632 F.2d 880 (CA8 1980); Creekmore v. Crossno, 259 F.2d 697 (CAlO 1958). The State contends that, because a habeas proceeding, technically speaking, is a civil proceeding, see, e. g., Browder v. Director, Dept. of Corrections of Ill., 434 U. S. 257, 269 (1978), this standard applies here. See Fed. Rule Civ. Proc.61.One problem with this argument lies in its failure to take into account the stakes involved in a habeas proceeding. Unlike the civil cases cited by the State, the errors being considered by a habeas court occurred in a criminal proceeding, and therefore, although habeas is a civil proceeding, someone's custody, rather than mere civil liability, is at stake. And, as we have explained, when reviewing errors from a criminal proceeding, this Court has consistently held that, if the harmlessness of the error is in grave doubt, relief must be granted. We hold the same here.441Moreover, precedent suggests that civil and criminal harmless-error standards do not differ in their treatment of grave doubt as to the harmlessness of errors affecting substantial rights. In Kotteakos, the Court interpreted the then-existing harmless-error statute, 28 U. S. C. § 391, now codified with minor change at 28 U. S. C. § 2111. See Kotteakos, 328 U. S., at 759 (explaining that the statute "grew out of widespread and deep conviction" that appellate courts had become" 'impregnable citadels of technicality''') (citation omitted). That statute, by its terms, applied to both civil and criminal cases, and Kotteakos made no distinction, at least with respect to the question at issue here, between the two types of cases. See id., at 757, n. 9; 11 C. Wright & A. Miller, Federal Practice and Procedure § 2883, p. 276 (1973) (hereinafter Wright & Miller). Similarly, the current harmless-error statute "traces its lineage" to § 391, and applies in both civil and criminal proceedings. See McDonough Power Equipment, Inc. v. Greenwood, 464 U. S. 548, 554, n. 4 (1984). And, more important for present purposes, the current harmless-error sections of the Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure (which use nearly identical language) both refer to § 391 as their statutory source. Compare Fed. Rule Crim. Proc. 52 (a) (providing that "[a]ny error ... which does not affect substantial rights shall be disregarded") with Fed. Rule Civ. Proc. 61 (providing that the court "must disregard any error ... which does not affect the substantial rights of the parties"); see Advisory Committee's Notes on Fed. Rule Crim. Proc. 52(a), 18 U. S. C. App., p. 833 (referring to former § 391 as a source); Advisory Committee's Notes on Fed. Rule Civ. Proc. 61, 28 U. S. C. App., p. 676 (same). In fact, in recent cases, we have interpreted the nearly identical language of Rule 52(a) as treating instances of grave doubt just as we treat them here. See Olano, 507 U. S., at 740-741, 743; Lane, 474 U. S., at 449 (quoting Kotteakos, supra, at 765).442For these reasons, even if, for argument's sake, we were to assume that the civil standard for judging harmlessness applies to habeas proceedings (despite the fact that they review errors in state criminal trials), it would make no difference with respect to the matter before us. For relevant authority rather clearly indicates that, either way, the courts should treat similarly the matter of "grave doubt" regarding the harmlessness of errors affecting substantial rights, and as Kotteakos provides.Second, our conclusion is consistent with the basic purposes underlying the writ of habeas corpus. As we have said, we are dealing here with an error of constitutional dimension-the sort that risks an unreliable trial outcome and the consequent conviction of an innocent person. See Brecht, 507 U. S., at 654 (O'CONNOR, J., dissenting). We also are assuming that the judge's conscientious answer to the question, "But, did that error have a 'substantial and injurious effect or influence' on the jury's decision?" is, "It is extremely difficult to say." In such circumstances, a legal rule requiring issuance of the writ will, at least often, avoid a grievous wrong-holding a person "in custody in violation of the Constitution ... of the United States." 28 U. S. C. §§ 2241(c)(3), 2254(a). Such a rule thereby both protects individuals from unconstitutional convictions and helps to guarantee the integrity of the criminal process by assuring that trials are fundamentally fair. See Traynor 23 ("In the long run there would be a closer guard against error at the trial, if ... courts were alert to reverse, in case of doubt, for error that could have contaminated the judgment"). By way of contrast, the opposite rule, denying the writ in cases of grave uncertainty, would virtually guarantee that many, in fact, will be held in unlawful custody-contrary to the writ's most basic traditions and purposes. And, it would tell judges who believe individuals are quite possibly being held "in custody in violation of the Constitution" that they cannot grant relief.443We concede that this opposite rule (denying the writ) would help protect the State's interest in the finality of its judgments and would promote federal-state comity. It would avoid retrials, some of which, held so late in the day, may lead to freedom for some petitioners whose initial convictions were in fact unaffected by the errors that took place at their initial trials. The State's interest in avoiding retrial of this latter category of individuals is legitimate and important. But this interest is somewhat diminished by the legal circumstance that the State normally bears responsibility for the error that infected the initial trial. And, if one assumes (1) that in cases of grave doubt, the error is at least as likely to have been harmful in fact as not, and (2) that retrial will often (or even sometimes) lead to reconviction, then that state interest is further diminished by a factual circumstance: the number of acquittals wrongly caused by grant of the writ and delayed retrial (the most serious harm affecting the State's legitimate interests) will be small when compared with the number of persons whom this opposite rule (denying the writ) would wrongly imprison or execute. On balance, we must doubt that the law of habeas corpus would hold many people in prison "in violation of the Constitution," for fear that otherwise a smaller number, not so held, may eventually go free.Third, our rule has certain administrative virtues. It is consistent with the way that courts have long treated important trial errors. See, e. g., Olano, supra; Lane, supra; Chapman, 386 U. S., at 24; Kotteakos, supra; see also 11 Wright & Miller § 2883. In a highly technical area such as this one, consistency brings with it simplicity, a body of existing case law available for consultation, see Brecht, supra, at 638, and a consequently diminished risk of further, errorproduced, proceedings. Moreover, our rule avoids the need for judges to read lengthy records to determine prejudice in every habeas case. These factors are not determinative, but offer a practical caution against a legal rule that, in respect444to precedent and purpose, would run against the judicial grain.IVThe State makes one additional argument. It points to language in the habeas corpus statute that says the federal courts"shall entertain an application for a writ of habeas corpus ... only on the ground that [a petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U. S. C. § 2254(a).See § 2241(c)(3). If a "violation of the Constitution" is harmless, the State adds, then there is no causal connection between "violation" and "custody," and the prisoner is not "in custody in violation of the Constitution." And, by analogy to tort law, the State contends that, because the habeas petitioner is in the position of plaintiff, he must prove this causal connection. Whatever force there may be to this argument is countered by the equally persuasive analogy to affirmative defenses, on which the party in the position of defendant (here the State) bears the risk of equipoise. And, to read the statute as the State suggests would run counter to the principle of Kotteakos that when an error's natural effect is to prejudice substantial rights and the court is in grave doubt about the harmlessness of that error, the error must be treated as if it had a "substantial and injurious effect" on the verdict. See Kotteakos, 328 U. S., at 764-765, 776.We do not see what in the language of the statute tells a court that it should treat a violation as harmless when it is in grave doubt about its harmlessness. One might as easily infer the opposite-that the statute leaves the matter of harmlessness as a kind of affirmative defense-from the absence, in the Habeas Corpus Rules' form petition, of any space for a "lack of harmlessness" allegation. See 28 U. S. C. § 2254 Rule 2(c) (providing in part that a habeas petition "shall be in substantially the form annexed to these445rules"). Or, one might as easily infer neutrality on the point from the statute's command that the court dispose of the petition "as law and justice require." 28 U. S. C. § 2243. Ultimately, we find no significant support for either side in any of this language. When faced with such gaps in the habeas statute, we have "look[ed] first to the considerations underlying our habeas jurisprudence, and then determine[d] whether the proposed rule would advance or inhibit these considerations by weighing the marginal costs and benefits of its application on collateral review." Brecht, 507 U. S., at 633. We have done that in this case, and for the reasons set forth above, see supra, at 442-443, we conclude that, when a habeas court is in grave doubt as to the harmlessness of an error that affects substantial rights, it should grant relief.VFor these reasons, the judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 1994SyllabusO'NEAL v. McANINCH, WARDENCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUITNo. 93-7407. Argued October 31, 1994-Decided February 21,1995In proceedings on Robert O'Neal's federal habeas corpus petition challenging his state-court convictions for murder and other crimes, the Sixth Circuit assumed that O'Neal had established constitutional "trial" error with regard to one of the jury instructions, but disregarded that error on the ground that it was "harmless." After setting forth the harmlessness standard normally used by federal habeas courts-whether the error had a "substantial and injurious effect or influence in determining the jury's verdict," see, e. g., Brecht v. Abrahamson, 507 U. S. 619, 627the Sixth Circuit stated that the habeas petitioner must bear the "burden of establishing" whether the error was prejudicial under that standard. As a practical matter, the court's burden-of-proof statement apparently means that the petitioner must lose if a reviewing judge is in grave doubt about the effect on the jury of this kind of error, i. e., if, in the judge's mind, the matter is so evenly balanced that he or she feels in virtual equipoise as to the error's harmlessness.Held: When a federal habeas court finds a constitutional trial error and is in grave doubt about whether the error had a "substantial and injurious effect or influence in determining the jury's verdict," the error is not harmless, and the petitioner must win. Pp. 436-445.(a) The foregoing legal conclusion rests upon three considerations.First, it is supported by precedent. See, e. g., Kotteakos v. United States, 328 U. S. 750, 764-765; Chapman v. California, 386 U. S. 18,24. Brecht, supra, at 637, and Palmer v. Hoffman, 318 U. S. 109, 116, distinguished. The State's view that appellants' "burden" of showing "prejudice" in civil cases applies to habeas proceedings fails to take into account the stakes involved in a habeas proceeding. Unlike the civil cases cited by the State, the errors being considered by a habeas court occurred in a criminal proceeding, and therefore, although habeas is a civil proceeding, someone's custody, rather than mere civil liability, is at stake. Moreover, precedent suggests that civil and criminal harmlesserror standards do not differ in their treatment of grave doubt as to the harmlessness of errors affecting substantial rights. Compare, e. g., Fed. Rule Crim. Proc. 52(a) with Fed. Rule Civ. Proc. 61. Second, the Court's conclusion is consistent with the basic purposes underlying the writ of habeas corpus. A legal rule requiring issuance of the writ will,433at least often, avoid the grievous wrong of holding a person in custody in violation of the Constitution and will thereby both protect individuals from unconstitutional convictions and help to guarantee the integrity of the criminal process by assuring that trials are fundamentally fair. In contrast, although denying the writ in cases of grave uncertainty would help protect the State's interest in the finality of its judgments and would promote federal-state comity, such a rule would also virtually guarantee that many, in fact, would be wrongly imprisoned or executed, and would tell judges who believe individuals are quite possibly being held in unlawful custody that they cannot grant relief. Third, the rule adopted herein has certain administrative virtues: It is consistent with the way that courts have long treated important trial errors and avoids the need for judges to read lengthy records to determine prejudice in every habeas case. These factors are not determinative, but offer a practical caution against a rule that, in respect to precedent and purpose, would run against the judicial grain. Pp. 437-444.(b) Contrary to the State's argument, there is nothing in the language of the habeas corpus statute, 28 U. S. C. § 2254(a), that tells a court to treat a violation as harmless when it is in grave doubt about harmlessness. Indeed, there is no significant support for either side in any of the language of the relevant statutes or Rules. In these circumstances, the Court properly undertakes the foregoing examination, looking first to the considerations underlying its habeas jurisprudence, and then determining whether the proposed rule will advance or inhibit these considerations by weighing the marginal costs and benefits of its application on collateral review. See Brecht, supra, at 633. Pp. 444-445.3 F.3d 143, vacated and remanded.BREYER, J., delivered the opinion of the Court, in which STEVENS, O'CONNOR, KENNEDY, SOUTER, and GINSBURG, JJ., joined. THOMAS, J., filed a dissenting opinion, in which REHNQUIST, C. J., and SCALIA, J., joined, post, p. 445.Thomas R. Wetterer, Jr., by appointment of the Court, 511 U. S. 1067, argued the cause for petitioner. With him on the briefs were Gloria Eyerly, Gregory L. Ayers, and John A. Bay.Richard A. Cordray, State Solicitor of Ohio, argued the cause for respondent. With him on the briefs were Lee Fisher, Attorney General, Simon B. Karas, and Stuart A. Cole and Timothy J. Mangan, Assistant Attorneys General.434Full Text of Opinion

1968_830

MR. JUSTICE HARLAN delivered the opinion of the Court.Petitioner is a career officer in the Air Force who has come to believe that this country's participation in the Vietnamese conflict is unjust and immoral. Having decided that he would do nothing to further the Nation's military effort in Southeast Asia, Captain Noyd refused to obey an order, issued December 5, 1967, requiring him Page 395 U. S. 685 to teach one of the junior officers at the Cannon Air Force Base, New Mexico, to fly a military airplane. [Footnote 1]In response, Major General Charles Bond, Jr., the Commander of the Twelfth Air Force, convened a general court-martial at the Cannon Base. On March 8, 1968, the court-martial found Noyd guilty of willfully disobeying a lawful order; on the following day, petitioner was sentenced to one year's confinement at hard labor, forfeiture of all pay and allowances, and dismissal from the Air Force. As soon as the court-martial announced its sentence, Captain Noyd was ordered confined to his quarters. The court-martial's judgment was then forwarded to General Bond for the review required by 10 U.S.C. § 864, and, on May 10, 1968, the General approved the sentence, ordering that:"Pending completion of appellate review, the accused will be confined in the United States Disciplinary Barracks, Fort Leavenworth, Kansas. "Page 395 U. S. 686At this point, petitioner's attorneys undertook two courses of action. On the one hand, they appealed the merits of petitioner's conviction to the Air Force Board of Review, which is the appellate military tribunal Congress has established to oversee the administration of criminal justice in petitioner's branch of the Armed Forces. On the other hand, they sought habeas corpus relief from the civilian courts, arguing that the Uniform Code of Military Justice required that petitioner be released from confinement pending the outcome of his military appeal.At the present time, petitioner's appeal from his conviction is still pending in the higher reaches of the military court system. While the Air Force Board of Review has now affirmed the judgment of the court-martial, the Court of Military Appeals, the highest military tribunal, has agreed to review Captain Noyd's case. Petitioner does not suggest that we may properly interfere with the orderly process of military review by considering the merits of his conviction at this juncture. Rather, we are now only asked to vindicate his asserted right to remain free from confinement while the validity of his conviction is still being litigated in the appellate military courts.ICaptain Noyd's effort to invoke the assistance of the civilian courts was precipitated by General Bond's order transferring petitioner to the disciplinary barracks at Fort Leavenworth. Shortly after the order was issued, and before it was carried out, petitioner sought a writ of habeas corpus from the United States District Court for the District of New Mexico, arguing that both his confinement at the Cannon Air Force Base and his proposed transfer to Fort Leavenworth were in violation of two provisions of the Uniform Code of Military Justice. Page 395 U. S. 687 First, petitioner contended that his confinement constituted an attempt to "execute" his sentence in violation of Article 71(c) of the Code, which provides:"No sentence which includes, unsuspended, a dishonorable or bad-conduct discharge, or confinement for one year or more, may be executed until affirmed by a board of review and, in cases reviewed by it, the Court of Military Appeals."10 U.S.C. § 871(c). (Emphasis supplied.) Second, petitioner argued that Article 13 of the Code [Footnote 2] only authorized confinement of a convicted serviceman pending his appeal after the military has found that restraint is necessary to prevent the serviceman's flight from the jurisdiction. Since no such finding has been made in this case, petitioner argued that the civilian court should require his complete release.The Government, in addition to opposing Captain Noyd's claims on the merits, argued that petitioner should be required to exhaust his military remedies before seeking habeas corpus relief from the civilian courts. The District Court, however, refused to apply the exhaustion principle in the present case, finding that the military court system did not provide petitioner with an adequate remedy by which he could test the validity of his confinement, pending appeal, in an expedited manner. Page 395 U. S. 688 Turning to the merits, the District Judge granted petitioner part of the relief he requested. While the court refused to review the legality of Noyd's confinement at the Cannon Air Force Base, the court did find that petitioner's incarceration at Fort Leavenworth would constitute an "execution" of his sentence in violation of Article 71(c), and so declared General Bond's order invalid. [Footnote 3]Both sides appealed to the Court of Appeals for the Tenth Circuit, which reversed the District Court's grant of partial relief. Relying on this Court's decision in Gusik v. Schilder, 340 U. S. 128 (1950), a unanimous panel held that the District Court could not properly grant petitioner any form of relief until he had first challenged the validity of his confinement before the appellate tribunals within the military system. The court emphasized that "the Court of Military Appeals has recently held that it possesses the power to issue a habeas corpus writ" if a serviceman could demonstrate that he was illegally restrained pending appeal, and it could perceive no justification for petitioner's failure to seek the military court's assistance. 402 F.2d 441, 442-443. We granted certiorari to consider the propriety of the application of the rule of Gusik v. Schilder in the circumstances of this case. 393 U. S. 1048 (1969).IIShortly after the Court of Appeals announced its decision, petitioner recognized that, since his sentence was Page 395 U. S. 689 scheduled to expire on December 26, 1968, [Footnote 4] he might well be released from custody before this Court would have an opportunity to pass upon his claims for relief pending his appeal to the military courts. In order to avoid the possibility of mootness, petitioner promptly requested the Court of Appeals to stay its mandate and order his release pending this Court's decision on his petition for certiorari. On December 6, the Court of Appeals agreed to stay its mandate, thereby keeping the District Court's order in effect, but refused to require the military to release Captain Noyd from custody at the Cannon Air Force Base.Petitioner then applied to MR. JUSTICE WHITE, Circuit Justice for the Tenth Circuit, for temporary release from all confinement pending this Court's action on his certiorari petition. When the Circuit Justice denied this application on December 18, 1968, a second motion of the same tenor was made to MR. JUSTICE DOUGLAS on the following day. Noting that the Court was then in recess and would not meet again until January 10, 1969, MR. JUSTICE DOUGLAS ordered that "petitioner . . . be placed in a nonincarcerated status" until the full Court could have an opportunity to pass on the issues raised in a considered manner. Pursuant to MR. JUSTICE DOUGLAS' order, petitioner was released from confinement on Christmas Eve, two days before his sentence was scheduled to expire. [Footnote 5] Page 395 U. S. 690Despite MR. JUSTICE DOUGLAS' order of release, the Government now suggests that this case has become moot. It claims that, under the applicable military law, a judicial order that petitioner be placed in a "nonincarcerated status" was insufficient to toll petitioner's sentence, which continued to run until it expired of its own force on December 26. The Government bases this claim upon its reading of Article 57(b) of the Uniform Code of Military Justice:"Any period of confinement included in a sentence of a court-martial begins to run from the date the sentence is adjudged by the court-martial, but periods during which the sentence to confinement is suspended shall be excluded in computing the service of the term of confinement."10 U.S.C. § 857(b). Citing interpretive military regulations, the Government understands the statute to establish the general rule that"[t]he date the sentence of a court-martial is adjudged will mark the beginning of a sentence to confinement whether or not the accused had then been placed in confinement."Apprehension and Confinement: Military Sentences to Confinement, AR 633-30; AFR 1230. (Emphasis supplied.)Petitioner does not disagree with the Government's understanding of the general rule, but relies on that part of the statute which expressly provides that a sentence may be tolled if it is "suspended" and the serviceman is placed on probation. Petitioner argues that, since MR. JUSTICE DOUGLAS' order, and this Court's confirmance of it, had the obvious purpose to preserve the status quo pending the full Court's consideration of the merits of his certiorari petition, the order should be understood to have "suspended" petitioner's sentence within the meaning of the statutory exception to the general rule. In response, the Government emphasizes that MR. JUSTICE DOUGLAS' Page 395 U. S. 691 order did not expressly "suspend" petitioner's sentence, and so contends that the statutory exception is not applicable in this instance.We find it unnecessary to decide this question. For even if MR. JUSTICE DOUGLAS' order did not satisfy the statutory exception, we hold that it was sufficient to interrupt the running of petitioner's sentence. Like the Court of Military Appeals, we do not believe that Congress intended that the general rule stated in Article 57(b) be inexorably applied in all situations which do not fall within the "suspension of sentence" exception:"Congress did not mention all contingencies which would prevent an accused from being credited with time served. Common sense suggests that, if an accused escaped from confinement, his period of service would be interrupted and he would be required to make up the time at the end of the period."United States v. Bryant, 12 U.S.C.M.A. 133, 137, 30 C.M.R. 133, 137 (1961). We think it equally clear that Article 57(b) was not intended to give a litigious serviceman a bonus when he obtains temporary release from confinement the military was seeking to impose. Rather, the statute serves to protect a convicted serviceman whom the military wishes to release from confinement before his term has run. If a serviceman's commanding officer simply releases him from confinement without "suspending" his sentence, the Code does not demand that the serviceman be given a hearing before he is reincarcerated. In contrast, the Code demands that, once a sentence is "suspended," it may not be reinstated unless the accused is given a hearing, at which he is represented by counsel, in order to determine whether he has violated the conditions of his probation. 10 U.S.C. § 872(a). Article 57(b), then, represents Congress' decision that, even though a man is temporarily set at liberty, he should be given sentence Page 395 U. S. 692 credit unless he is sure that his freedom will not be curtailed at a later date without a plenary hearing. Obviously, the statute's purpose will not be served in the present case, where Captain Noyd's liberty will only be limited once again after a full argument before the judiciary.In recognition of this fact, the Manual for Courts-Martial has, since its promulgation in 1951, required that a serviceman not be given credit for the time during which he has obtained release from confinement in cases like the present one. The Manual, which has the force of law unless it is "contrary to or inconsistent with" the Uniform Code Congress has enacted, 10 U.S.C. § 836(a), provides:"A sentence to confinement . . . is continuous until the term expires, with certain exceptions. These exceptions include the following:""* * * *" "Periods during which the person undergoing such a sentence is absent without authority . . . or is erroneously released from confinement through misrepresentation or fraud on the part of the prisoner, or is erroneously released from confinement upon his petition for a writ of habeas corpus under a court order which is later reversed by a competent tribunal. . . ."§ 97(c), Manual for Courts-Martial, United States (1951). (Emphasis supplied.) Thus, the Manual requires that a serviceman receive no sentence credit for the period he has avoided confinement if the judicial decision granting him freedom is reversed on appeal. It follows a fortiori that the principles established in the Manual require that Captain Noyd be denied sentence credit as well. For, in the present litigation, petitioner has not convinced any court that he may properly be relieved from all confinement. Petitioner Page 395 U. S. 693 obtained his release from MR. JUSTICE DOUGLAS simply by showing that his chances of success on the merits were sufficiently great to warrant the grant of interlocutory relief. Surely, he is not entitled to more favorable sentencing treatment than the serviceman who has at least convinced one court that his claim to release is legally sound but whose arguments have not been upheld on appeal.We hold that the principles of the Manual for Courts-Martial operated to interrupt the running of Captain Noyd's sentence at the time of his release on December 24, 1968, and hence that the case before us is not moot.IIIWe now turn to consider whether petitioner could properly seek his release in civilian courts without making any effort to invoke the assistance of the courts within the military system. Gusik v. Schilder, 340 U. S. 128 (1950), established the general rule that habeas corpus petitions from military prisoners should not be entertained by federal civilian courts until all available remedies within the military court system have been invoked in vain. MR. JUSTICE DOUGLAS, for a unanimous Court, explained some of the important reasons which require civilian courts to respect the integrity of the military court system that Congress has established:"An analogy is a petition for habeas corpus in the federal court challenging the jurisdiction of a state court. If the state procedure provides a remedy, which though available has not been exhausted, the federal courts will not interfere. . . . The policy underlying that rule is as pertinent to the collateral attack of military judgments as it is to collateral attack of judgments rendered in state courts. If an available procedure has not been employed to rectify the alleged error which the federal court is asked Page 395 U. S. 694 to correct, any interference by the federal court may be wholly needless. The procedure established to police the errors of the tribunal whose judgment is challenged may be adequate for the occasion. If it is, any friction between the federal court and the military or state tribunal is saved. . . . Such a principle of judicial administration is in no sense a suspension of the writ of habeas corpus. It is merely a deferment of resort to the writ until other corrective procedures are shown to be futile."Id. at 340 U. S. 131-132. It is true, of course, that the principles of federalism which enlighten the law of federal habeas corpus for state prisoners are not relevant to the problem before us. Nevertheless other considerations require a substantial degree of civilian deference to military tribunals. In reviewing military decisions, we must accommodate the demands of individual rights and the social order in a context which is far removed from those which we encounter in the ordinary run of civilian litigation, whether state or federal. In doing so, we must interpret a legal tradition which is radically different from that which is common in civil courts.It is for these reasons that Congress, in the exercise of its power to "make Rules for the Government and Regulation of the land and naval Forces," [Footnote 6] has never given this Court appellate jurisdiction to supervise the administration of criminal justice in the military. When, after the Second World War, Congress became convinced of the need to assure direct civilian review over military justice, it deliberately chose to confide this power to a specialized Court of Military Appeals so that disinterested civilian judges could gain, over time, a fully developed understanding of the distinctive problems and legal traditions of the Armed Forces. Page 395 U. S. 695Almost one year before petitioner sought habeas corpus relief from the Federal District Court sitting in New Mexico, the Court of Military Appeals had held that it would, in appropriate cases, grant the relief petitioner now demands from us. Levy v. Resor, 17 U.S.C.M.A. 135, 37 C.M.R. 399 (1967). [Footnote 7] Petitioner, however, has made no effort to invoke the jurisdiction of the Court of Military Appeals. Nevertheless, he would have civilian courts intervene precipitately into military life without the guidance of the court to which Congress has confided primary responsibility for the supervision of military justice in this country and abroad.Petitioner emphasizes that, in the present case, we are not called upon to review prematurely the merits of the court-martial proceeding itself. Instead, we are merely asked to determine the legality of petitioner's confinement while he is exercising his right of appeal to the Page 395 U. S. 696 higher military courts. It is said that there is less justification for deference to military tribunals in ancillary matters of this sort. We cannot agree. All of the reasons supporting this Court's decision in Gusik v. Schilder, supra, are applicable here. If the military courts do vindicate petitioner's claim, there will be no need for civilian judicial intervention. Needless friction will result if civilian courts throughout the land are obliged to review comparable decisions of military commanders in the first instance. Moreover, if we were to reach the merits of petitioner's claim for relief pending his military appeal, we would be obliged to interpret extremely technical provisions of the Uniform Code which have no analogs in civilian jurisprudence, and which have not even been fully explored by the Court of Military Appeals itself. There seems little reason to blaze a trail on unfamiliar ground when the highest military court stands ready to consider petitioner's arguments. [Footnote 8]Petitioner contends, however, that the Court of Military Appeals cannot be expected to protect his rights in a fully effective way. His principal argument is based on the simple fact that the Court of Military Appeals sits exclusively in Washington, D.C. Thus, before a serviceman Page 395 U. S. 697 may invoke its habeas corpus jurisdiction, he must somehow obtain a lawyer willing and able to conduct a lawsuit in the Nation's Capital. It is said that this practical difficulty makes it clear that the Court of Military Appeals cannot provide petitioner with adequate relief.This argument seems to us far too sweeping to be acceptable. Individuals convicted of crime in the civil judicial system are often obliged to appeal to state courts which are far distant from the place at which they are incarcerated. Nevertheless, this fact alone has never been considered sufficient to permit a federal district court to consider a petition for habeas corpus without demanding that the prisoner exhaust all of the presently available remedies offered by the State's appellate courts. Similarly, the fact that Captain Noyd is confined far from Washington, D.C. is not enough, standing alone, to permit him to circumvent the military court system.Noyd argues, however, that the great distance of the Court of Military Appeals is of special significance in case like the present one, where speed is essential if relief is to be at all effective. But petitioner concedes that the Court of Military Appeals has thus far acted speedily when confronted with an application for an emergency writ, [Footnote 9] and there is no reason to believe that the court would not have responded rapidly if Captain Noyd had sought its assistance. [Footnote 10] Nor has petitioner Page 395 U. S. 698 ever suggested that it was impossible for him to obtain a lawyer who was willing to present an appropriate application before the Court of Military Appeals with the requisite dispatch.Instead, petitioner simply argues that other servicemen in other situations could conceivably have great difficulty in obtaining a lawyer who was able to move quickly before the military court sitting in Washington. Moreover, it is said that the Court of Military Appeals would be inundated with applications for emergency writs if all servicemen in petitioner's position were required to seek relief within the military system. It will be time enough, however, to consider these problems when and if they arise. It may be that situations like the present one are unusual, or that the Court of Military Appeals will be able to announce clear rules as to the proper treatment of convicted prisoners pending appeal, or that Congress will act to facilitate the hearing of applications for emergency writs within the military system. Since petitioner has at no time attempted to show that prompt and effective relief was unavailable from the Court of Military Appeals in his case, we hold that petitioner's failure to exhaust this remedy before seeking the assistance of the civilian courts is not excused. [Footnote 11] Page 395 U. S. 699Accordingly, the judgment of the Court of Appeals is affirmed. In light of the substantial questions raised by petitioner, however, we think it plain that petitioner in no sense acted in bad faith when he failed to exhaust his military remedies before invoking the jurisdiction of the District Court. Consequently, we consider it appropriate for us to continue MR. JUSTICE DOUGLAS' order in effect until our mandate issues, in order to give petitioner an opportunity to present his arguments to the Court of Military Appeals. See 28 U.S.C. § 1651(a); cf. Phillips v. United States, 312 U. S. 246, 312 U. S. 254 (Mr. Justice Frankfurter). While it is true that Captain Noyd has only two days yet to serve on his sentence, he should not be required to surrender his freedom for even this short time unless it is found that the law so requires.It is so ordered

U.S. Supreme CourtNoyd v. Bond, 395 U.S. 683 (1969)Noyd v. BondNo. 830Argued April 24, 1969Decided June 16, 1969395 U.S. 683SyllabusPetitioner, an Air Force officer at Cannon Air Force Base, was found guilty by a court-martial of willfully disobeying a lawful order. He was sentenced, inter alia, to a year's confinement at hard labor and immediately ordered confined to his quarters. The convening authority approved the sentence and ordered petitioner confined in the U.S. Disciplinary Barracks at Fort Leavenworth, Kans., pending completion of appellate review. Petitioner (1) appealed on the merits to the military tribunals (where final review is pending) and (2) sought habeas corpus relief from the District Court, arguing that Articles 71(c) and 13 of the Uniform Code of Military Justice required his release pending the outcome of his military appeal. The District Court, overruling the Government's contention that petitioner should be required to exhaust his military remedies before seeking habeas corpus relief from the civilian courts, found petitioner's incarceration at Fort Leavenworth would be invalid under Article 71(c). That court refused to review the legality of petitioner's confinement at Cannon Air Force Base. The Court of Appeals, relying on Gusik v. Schilder, 340 U. S. 128, reversed, and held that the District Court could not grant petitioner relief until he had challenged the validity of his confinement before the military appellate tribunals. Shortly after the Court of Appeals decision, petitioner recognized that his sentence was scheduled to expire and he might be released from custody before this Court had an opportunity to pass on his claims regarding his confinement, and that his case might become moot. The Court of Appeals, on petitioner's request, agreed to stay its mandate, but refused to require petitioner's release from custody at the Cannon Air Force Base. MR. JUSTICE DOUGLAS, following petitioner's application to him during a recess of this Court, ordered that petitioner be placed in "a nonincarcerated status" until the full Court could pass on the matter, and petitioner was released two days before his sentence was to expire. The Government contended that petitioner's case had nevertheless become moot, arguing that MR. JUSTICE DOUGLAS' Page 395 U. S. 684 order did not come within the category of a "suspension," which, under Article 57(b), tolls the running of a sentence.Held:1. The case is not moot. MR. JUSTICE DOUGLAS' order, even if it did not constitute a "suspension" under Article 57(b), was sufficient to interrupt the running of petitioner's sentence under the rationale of § 97(c) of the Manual for Courts-Martial that a military prisoner who has been freed from confinement may not receive credit for time served during the period of his release. Pp. 395 U. S. 688-693.2. Habeas corpus petitions from military prisoners should not be entertained by civilian courts until all available remedies within the military court system have been exhausted, Gusik v. Schilder, supra, and since this principle applies with equal force to ancillary matter such as the legality of petitioner's confinement pending completion of military review, petitioner's failure to exhaust his remedy in the Court of Military Appeals forecloses the relief requested here. Pp. 395 U. S. 693-698.402 F.2d 441, affirmed.

1976_75-904

MR JUSTICE MARSHALL delivered the opinion of the Court.This case raises important questions concerning the interrelationship of the anti-merger and private damages action provisions of the Clayton Antitrust Act. Page 429 U. S. 479Petitioner is one of the two largest manufacturers of bowling equipment in the United States. Respondents are three of the 10 bowling centers owned by Treadway Companies, Inc. Since 1965, petitioner has acquired and operated a large number of bowling centers, including six in the markets in which respondents operate. Respondents instituted this action contending that these acquisitions violated various provisions of the antitrust laws.In the late 1950's, the bowling industry expanded rapidly, and petitioner's sales of lanes, automatic pinsetters, and ancillary equipment rose accordingly. [Footnote 1] Since this equipment requires a major capital expenditure -- $12,600 for each lane and pinsetter, App. A1576 -- most of petitioner's sales were for secured credit.In the early 1960's, the bowling industry went into a sharp decline. Petitioner's sales quickly dropped to pre-boom levels. Moreover, petitioner experienced great difficulty in collecting money owed it; by the end of 1964, over $100,000,000, or more than 25%, of petitioner's accounts were more than 90 days delinquent. Id. at A1884. Repossessions rose dramatically, but attempts to sell or lease the repossessed equipment met with only limited success. [Footnote 2] Because petitioner had borrowed close to $250,000,000 to finance its credit sales, id. at A1900, it was, as the Court of Appeals concluded, "in serious financial difficulty." NBO Industries Treadway Cos., Inc. v. Brunswick Corp., 523 F.2d 262, 267 (CA3 1975).To meet this difficulty, petitioner began acquiring and Page 429 U. S. 480 operating defaulting bowling centers when their equipment could not be resold and a positive cash flow could be expected from operating the centers. During the seven years preceding the trial in this case, petitioner acquired 222 centers, 54 of which it either disposed of or closed. Ibid. These acquisitions made petitioner by far the largest operator of bowling centers, with over five times as many centers as its next largest competitor. Ibid. Petitioner's net worth in 1965 was more than eight times greater, and its gross revenue more than seven times greater, than the total for the 11 next largest bowling chains. App. A1675. Nevertheless, petitioner controlled only 2% of the bowling centers in the United States. Id. at A1096.At issue here are acquisitions by petitioner in the three markets in which respondents are located: Pueblo, Colo. Poughkeepsie, N.Y. and Paramus, N.J. In 1965, petitioner acquired one defaulting center in Pueblo, one in Poughkeepsie, and two in the Paramus area. In 1969, petitioner acquired a third defaulting center in the Paramus market, and, in 1970, petitioner acquired a fourth. Petitioner closed its Poughkeepsie center in 1969 after three years of unsuccessful operation; the Paramus center acquired in 1970 also proved unsuccessful, and in March, 1973, petitioner gave notice that it would cease operating the center when its lease expired. The other four centers were operational at the time of trial.Respondents initiated this action in June, 1966, alleging, inter alia, that these acquisitions might substantially lessen competition or tend to create a monopoly in violation of § 7 of the Clayton Act, 15 U.S.C. § 18. [Footnote 3] Respondents sought Page 429 U. S. 481 damages, pursuant to § 4 of the Act, 15 U.S.C. § 15, for three times "the reasonably expectable profits to be made [by respondents] from the operation of their bowling centers." App. A24. Respondents also sought a divestiture order, an injunction against future acquisitions, and such "other further and different relief" as might be appropriate under § 16 of the Act, 15 U.S.C. § 26. App. A27.Trial was held in the spring of 1973, following an initial mistrial due to a hung jury. To establish a § 7 violation, respondents sought to prove that, because of its size, petitioner had the capacity to lessen competition in the markets it had entered by driving smaller competitors out of business. To establish damages, respondents attempted to show that, had petitioner allowed the defaulting centers to close, respondents' profits would have increased. At respondents' request, the jury was instructed in accord with respondents' theory as to the nature of the violation and the basis for damages. The jury returned a verdict in favor of respondents in the amount of $2,358,030, which represented the minimum estimate by respondents of the additional income they would have realized had the acquired centers been closed. Id. at A1737. As required by law, the District Court trebled the damages. [Footnote 4] It also awarded respondents costs and attorneys' Page 429 U. S. 482 fees totaling $446,97.32, and, sitting as a court of equity, it ordered petitioner to divest itself of the centers involved here, Treadway Cos. v. Brunswick Corp., 389 F. Supp. 996 (NJ 1974). Petitioner appealed. [Footnote 5]The Court of Appeals, while endorsing the legal theories upon which respondents' claim was based, reversed the judgment and remanded the case for further proceedings. NBO Industries Treadway Cos. v. Brunswick Corp., supra. The court found that a properly instructed jury could have concluded that petitioner was a "giant" whose entry into a "market of pygmies" might lessen horizontal retail competition, because such a "giant""has greater ease of entry into the market, can accomplish cost savings by investing in new equipment, can resort to low or below cost sales to sustain itself against competition for a longer period, and can obtain more favorable credit terms."523 F.2d at 268. The court also found that there was sufficient evidence to permit a jury to conclude that, but for petitioner's actions, the acquired centers would have gone out of business. Id. Page 429 U. S. 483 at 273, 275-277, and the court held that, if jury were to make such findings, respondents would be entitled to damages for threefold the income they would have earned. After reviewing the instructions on these issues, however, the court decided that the jury had not been properly charged, and that therefore a new trial was required. Id. at 275-277. [Footnote 6] It also decided that, since "an essential predicate" for the District Court's grant of equitable relief as the jury verdict on the § 7 claim, the equitable decree should be vacated a well. Id. at 277-278. And it concluded that, in any event, equitable relief"should be restricted to preventing those practice by which a deep pocket market entrant harms Page 429 U. S. 484 competition. . . . [D]ivestiture was simply inappropriate."Id. at 279.Both sides petitioned this Court for writs of certiorari. Brunswick's petition challenged the theory the Court of Appeals had approved for awarding damages; the plaintiffs' petition challenged the Court of Appeals' conclusions with respect to the jury instructions and the appropriateness of a divestiture order. [Footnote 7] We granted Brunswick's petition. [Footnote 8] 424 U. S. 90 (1976).IIThe issue for decision is a narrow one. Petitioner does not presently contest the Court of Appeals' conclusion that a properly instructed jury could have found the acquisitions unlawful. Nor does petitioner challenge the Court of Appeals' determination that the evidence would support a finding that had petitioner not acquired these centers, they would have gone out of business and respondents' income would have increased. Petitioner questions only whether antitrust damages are available where the sole injury alleged is that competitors were continued in business, thereby denying respondents an anticipated increase in market shares. [Footnote 9] Page 429 U. S. 485To answer that question, it is necessary to examine the anti-merger and treble damages provisions of the Clayton Act. Section 7 of the Act proscribes mergers whose effect "may be substantially to lessen competition, or to tend to create a monopoly." (Emphasis added.) It is, as we have observed many times, a prophylactic measure, intended "primarily to arrest apprehended consequences of intercorporate relationships before those relationships could work their evil. . . ." United States v. E. I. du Pont de Nemours & Co., 353 U. S. 586, 353 U. S. 597 (1957). See also Brown Shoe Co. v. United States, 370 U. S. 294, 370 U. S. 317-318 (1962); United States v. Philadelphia Nat. Bank, 374 U. S. 321, 374 U. S. 362-363 (1963); United States v. Penn-Olin Chemical Co., 378 U. S. 158, 378 U. S. 170-171 (1964); United States v. Von's Grocery Co., 384 U. S. 270, 384 U. S. 277 (1966); FTC v. Procter & Gamble Co., 386 U. S. 568, 386 U. S. 577-578 (1967); Gulf Oil Corp. v. Copp Paving Co., 419 U. S. 186, 419 U. S. 201 (1974).Section 4, in contrast, is in essence a remedial provision. It provides treble damages to "[a]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws. . . ." Of course, treble damages also play an important role in penalizing wrongdoers and deterring wrongdoing, as we also have frequently observed. Perma Life Mufflers v. International Parts Corp., 392 U. S. 134, 392 U. S. 139 (1968); Fortner Enterprises v. United States Steel Corp., 394 U. S. 495, 394 U. S. 502 (1969); Zenith Radio Corp. v. Hazeltine Research, 395 U. S. 100, 395 U. S. 130 (1969); Hawaii v. Standard Oil Co., 405 U. S. 251, 405 U. S. 262 (1972). It nevertheless is true that the treble damages provision, which makes awards available only to injured parties, and measures the awards by a Page 429 U. S. 486 multiple of the injury actually proved, is designed primarily a a remedy. [Footnote 10]Intermeshing a statutory prohibition against acts that have a potential to cause certain harms with a damages action intended to remedy those harms is not without difficulty. Plainly, to recover damages, respondents must prove more than that petitioner violated § 7, since such proof establishes only that injury may result. Respondents contend that the only additional element they need demonstrate is that they are in a worse position than they would have been had petitioner not committed those acts. The Court of Appeals agreed, Page 429 U. S. 487 holding compensable any loss "causally linked" to "the mere presence of the violator in the market." 523 F.2d at 272-273. Because this holding divorces antitrust recovery from the purposes of the antitrust laws without a clear statutory command to do so, we cannot agree with it.Every merger of two existing entities into one, whether lawful or unlawful, has the potential for producing economic readjustments that adversely affect some persons. But Congress has not condemned mergers on that account; it has condemned them only when they may produce anticompetitive effects. Yet, under the Court of Appeals' holding, once a merger is found to violate § 7, all dislocations caused by the merger are actionable, regardless of whether those dislocations have anything to do with the reason the merger was condemned. This holding would make § 4 recovery entirely fortuitous, and would authorize damages for losses which are of no concern to the antitrust laws. [Footnote 11]Both of these consequences are well illustrated by the facts of this case. If the acquisitions here were unlawful, it is because they brought a "deep pocket" parent into a market of "pygmies." Yet respondents' injury -- the loss of income that would have accrued had the acquired centers gone bankrupt -- bears no relationship to the size of either the acquiring company or its competitors. Respondents would have suffered the identical "loss" -- but no compensable injury -- had the acquired centers instead obtained refinancing or been purchased by "shallow pocket" parents, as the Court of Appeals itself acknowledged, 523 F.2d at 279. [Footnote 12] Thus, respondents' injury was not of "the type that the statute was Page 429 U. S. 488 intended to forestall," Wyandotte Co. v. United States, 389 U. S. 191, 389 U. S. 202 (1967). [Footnote 13]But the antitrust laws are not merely indifferent to the injury claimed here. At base, respondents complain that, by acquiring the failing centers petitioner preserved competition, thereby depriving respondents of the benefits of increased concentration. The damages respondents obtained are designed to provide them with the profits they would have realized had competition been reduced. The antitrust laws, however, were enacted for "the protection of competition, not competitors," Brown Shoe Co. v. United States, 370 U.S. at 370 U. S. 320. It is inimical to the purposes of these laws to award damages for the type of injury claimed here.Of course, Congress is free, if it desires, to mandate damages awards for all dislocations caused by unlawful mergers despite the peculiar consequences of so doing. But because of these consequences, "we should insist upon a clear expression of a congressional purpose," Hawaii v. Standard Oil Co., 405 U.S. at 405 U. S. 264, before attributing such an intent to Congress. We can find no such expression in either the language or the legislative history of § 4. To the contrary, it is far from clear that the loss of windfall profits that would have accrued had the acquired centers failed even constitutes "injury" within the meaning of § 4. And it is quite clear that, if respondents were injured, it was not "by reason of anything forbidden in the antitrust laws": while respondents' loss occurred "by reason of" the unlawful acquisitions, it did not occur "by reason of" that which made the acquisitions unlawful Page 429 U. S. 489We therefore hold that, for plaintiffs to recover treble damages on account of § 7 violations, they must prove more than injury causally linked to an illegal presence in the market. Plaintiffs must prove antitrust injury, which is to say injury of the type the antitrust laws were intended to prevent and that flows from that which makes defendants' acts unlawful. The injury should reflect the anticompetitive effect either of the violation or of anticompetitive acts made possible by the violation. It should, in short, be "the type of loss that the claimed violations . . . would be likely to cause." Zenith Radio Corp. v. Hazeltine Research, 395 U.S. at 395 U. S. 125. [Footnote 14]IIIWe come, then, to the question of appropriate disposition of this case. At the very least, petitioner is entitled to a new trial, not only because of the instructional errors noted by the Court of Appeals that are at at issue here, see n 6, supra, but also because the District Court's instruction Page 429 U. S. 490 as to the basis for damages was inconsistent with our holding as outlined above. Our review of the record, however, persuades us that a new trial on the damages claim is unwarranted. Respondents based their case solely' on their novel damages theory which we have rejected. While they produced some conclusory testimony suggesting that, in operating the acquired centers, petitioner had abused its deep pocket by engaging in anticompetitive conduct, [Footnote 15] they made no attempt to prove that they had lost any income as a result of such predation. [Footnote 16] Rather, their entire proof of damages was based on their claim to profits that would have been earned had the acquired centers closed. Since respondents did not prove any cognizable damages, and have not offered any justification for allowing respondents, after two trials and over 10 years of litigation, yet a third opportunity to do so, it follows that, petitioner is entitled, in accord with its motion made pursuant to Rule 50(b), to judgment on the damages claim notwithstanding the verdict. Neely v. Eby Constr. Co., 386 U. S. 317, 386 U. S. 326- 330 (1967); United States v. Generes, 405 U. S. 93, 106-107(1972). Page 429 U. S. 491Respondents' complaint also prayed for equitable relief, and the Court of Appeals held that, if respondents established a § 7 violation, they might be entitled to an injunction against "those practices by which a deep pocket market entrant harms competition." 523 F.2d at 279. Because petitioner has not contested this holding, respondents remain free, on remand, to seek such a decree.The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtBrunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477 (1977)Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc.No. 75-904Argued November 3, 1976Decided January 25, 1977429 U.S. 477SyllabusRespondents, bowling centers in three distinct markets, brought this antitrust action against petitioner, one of the two largest bowling equipment manufacturers and the largest operator of bowling centers, claiming that petitioner's acquisitions of competing bowling centers that had defaulted in payments for bowling equipment that they had purchased from petitioner might substantially lessen competition or tend to create a monopoly in violation of § 7 of the Clayton Act. Respondents sought treble damages pursuant to § 4 of the Act, as well as injunctive and other relief. At trial, they sought to prove that petitioner, because of its size, had the capacity to lessen competition in the markets it had entered by driving smaller competitors out of business. To establish damages, respondents attempted to show that, had petitioner allowed the defaulting centers to close, respondents' profits would have increased. The jury returned a verdict for damages in favor of respondents, which the District Court trebled in accordance with § 4. The Court of Appeals, while endorsing the legal theories upon which respondents' claim was based, reversed the case and remanded for further proceedings because of errors in the trial court's instructions to the jury. The court concluded that a properly instructed jury could have found that a "giant" like petitioner entering a market of "pygmies" might lessen horizontal retail competition. The court also concluded that there was sufficient evidence to permit a jury to find that, but for petitioner's actions, the acquired centers would have gone out of business. The court held that, if a jury were to make such findings, respondents would be entitled to damages for threefold the income they would have earned. Petitioner's petition for certiorari challenged the theory that the Court of Appeals had approved for awarding damages.Held:1. For plaintiffs in an antitrust action to recover treble damages on account of § 7 violations, they must prove more than that they suffered injury which was causally linked to an illegal presence in the market; they must prove injury of the type that the antitrust laws were intended to prevent and that flows from that which makes the defendants' acts unlawful. The injury must reflect the anticompetitive effect Page 429 U. S. 478 of either the violation or of anticompetitive acts made possible by the violation. Pp. 429 U. S. 484-489.(a) Section 4 is essentially a remedial provision, and, to recover damages, respondents must prove more than that petitioner violated § 7. Pp. 429 U. S. 485-487.(b) Congress has condemned mergers only when they may produce anticompetitive effects; yet, under the Court of Appeals' holding, once a merger is found to violate § 7, all dislocations that the merger caused are actionable regardless of whether the dislocations have anything to do with the reason the merger was condemned. Here, if the acquisitions were unlawful it, is because they brought a "deep pocket" parent into a market of "pygmies," but respondents' injury is unrelated to the size of either the acquiring company or its competitors; it would have suffered the identical loss, but without any recourse had the acquired centers secured refinancing or had they been bought by a "shallow pocket" parent. Pp. 429 U. S. 487-488.2. Petitioner is entitled under Fed.Rule Civ.Proc. 50(b) to judgment on the damages claim notwithstanding the verdict, since respondents' case was based solely on their novel theory, rejected herein, of damages ascribable to profits they would have received had the acquired centers been closed, and since respondents have not shown any reason to require a new trial. Pp. 429 U. S. 489-490.3. Respondents remain free on remand to seek equitable relief. P. 429 U. S. 491.523 F.2d 262, vacated and remanded.MARSHALL, J., delivered the opinion for a unanimous Court.

1973_73-203

MR. JUSTICE POWELL delivered the opinion of the Court.On May 2, 1966, petitioner filed a class action on behalf of himself and all other odd-lot [Footnote 1] traders on the New York Stock Exchange (the Exchange). The complaint charged respondents with violations of the antitrust and securities laws and demanded damages for petitioner and his class. Eight years have elapsed, but there has been no trial on the merits of these claims. Both the parties and the courts are still wrestling with the complex questions surrounding petitioner's attempt to maintain his suit as a class action under Fed.Rule Civ.Proc. 23. We granted certiorari to resolve some of these difficulties. 414 U.S. 908 (1973). Page 417 U. S. 160IPetitioner brought this class action in the United States District Court for the Southern District of New York. Originally, he sued on behalf of all buyers and sellers of odd lots on the Exchange, but subsequently the class was limited to those who traded in odd lots during the period from May 1, 1962, through June 30, 1966. 52 F.R.D. 253, 261 (1971). Throughout this period, odd-lot trading was not part of the Exchange's regular auction market, but was handled exclusively by special odd-lot dealers, who bought and sold for their own accounts as principals. Respondent brokerage firms Carlisle & Jacquelin and DeCoppet & Doremus together handled 99% of the Exchange's odd-lot business. S.E.C., Report of Special Study of Securities Markets, H.R.Doc. No. 95, pt. 2, 88th Cong., 1st Sess., 172 (1963). They were compensated by the odd-lot differential, a surcharge imposed on the odd-lot investor in addition to the standard brokerage commission applicable to round-lot transactions. For the period in question the differential was l/8 of a point (12 1/2�) per share on stocks trading below $40 per share and 1/4 of a point (25�) per share on stocks trading at or above $40 per share. [Footnote 2]Petitioner charged that respondent brokerage firms had monopolized odd-lot trading and set the differential at an excessive level in violation of §§ 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 and 2, and he demanded treble damages for the amount of the overcharge. Petitioner also demanded unspecified money damages from the Exchange for its alleged failure to regulate the differential for the protection of investors in violation of §§ 6 and 19 of the Securities Exchange Act of 1934, 15 U.S.C. §§ 78f and 78s. Finally, he requested attorneys' Page 417 U. S. 161 fees and injunctive prohibition of future excessive charges.A critical fact in this litigation is that petitioner's individual stake in the damages award he seeks is only $70. No competent attorney would undertake this complex antitrust action to recover so inconsequential an amount. Economic reality dictates that petitioner's suit proceed as a class action or not at all. Opposing counsel have therefore engaged in prolonged combat over the various requirements of Rule 23. The result has been an exceedingly complicated series of decisions by both the District Court and the Court of Appeals for the Second Circuit. To understand the labyrinthian history of this litigation, a preliminary overview of the decisions may prove useful.In the beginning, the District Court determined that petitioner's suit was not maintainable as a class action. On appeal, the Court of Appeals issued two decisions known popularly as Eisen I and Eisen II. The first held that the District Court's decision was a final order, and thus appealable. In the second, the Court of Appeals intimated that petitioner's suit could satisfy the requirements of Rule 23, but it remanded the case to permit the District Court to consider the matter further. After conducting several evidentiary hearings on remand, the District Court decided that the suit could be maintained as a class action and entered orders intended to fulfill the notice requirements of Rule 23. Once again, the case was appealed. The Court of Appeals then issued its decision in Eisen III, and ended the trilogy by denying class action status to petitioner's suit. We now review these developments in more detail.Eisen IAs we have seen, petitioner began this action in May, 1966. In September of that year, the District Court Page 417 U. S. 162 dismissed the suit as a class action. 41 F.R.D. 147. Following denial of his motion for interlocutory review under 28 U.S.C. § 1292(b), petitioner took an appeal as of right under § 1291. Respondents then moved to dismiss on the ground that the order appealed from was not final. In Eisen I, the Court of Appeals held that the denial of class action status in this case was appealable as a final order under § 1291. 370 F.2d 119 (1966), cert. denied, 386 U.S. 1035 (1967). This was so because, as a practical matter, the dismissal of the class action aspect of petitioner's suit was a "death knell" for the entire action. The court thought this consequence rendered the order dismissing the class action appealable under Cohen v. Beneficial Loan Corp., 337 U. S. 541, 337 U. S. 546 (1949).Eisen IINearly 18 months later, the Court of Appeals reversed the dismissal of the class action in a decision known as Eisen II. 391 F.2d 555 (1968). In reaching this result, the court undertook an exhaustive but ultimately inconclusive analysis of Rule 23. Subdivision (a) of the Rule sets forth four prerequisites to the maintenance of any suit as a class action:"(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class."The District Court had experienced little difficulty in finding that petitioner satisfied the first three prerequisites, but had concluded that petitioner might not "fairly and adequately protect the interests of the class" as required by Rule 23(a)(4). The Court of Appeals indicated its disagreement with the Page 417 U. S. 163 reasoning behind the latter conclusion, and directed the District Court to reconsider the point.In addition to meeting the four conjunctive requirements of 23(a), a class action must also qualify under one of the three subdivisions of 23(b). [Footnote 3] Petitioner argued that the suit was maintainable as a class action under all three subdivisions. The Court of Appeals held the first two subdivisions inapplicable to this suit [Footnote 4] and Page 417 U. S. 164 therefore turned its attention to the third subdivision, (b)(3). That subdivision requires a court to determine whether "questions of law or fact common to the members of the class predominate over any questions affecting only individual members," and whether "a class action is superior to other available methods for the fair and efficient adjudication of the controversy." More specifically, it identifies four factors relevant to these inquiries. After a detailed review of these provisions, the Court of Appeals concluded that the only potential barrier to maintenance of this suit as a class action was the Rule 23(b)(3)(D) directive that a court evaluate "the difficulties likely to be encountered in the management of a class action." Commonly referred to as "manageability," this consideration encompasses the whole range of practical problems that may render the class action format inappropriate for a particular suit. With reference to this litigation, the Court of Appeals noted that the difficulties of distributing any ultimate recovery to the class members would be formidable, though not necessarily insuperable, and commented that it was "reluctant to permit actions to proceed where they are not likely to benefit anyone but the lawyers who bring them." 391 F.2d at 567. The Court therefore directed the District Court to conduct "a further inquiry . . . in order to consider the mechanics involved in the administration of the present action." Ibid. Page 417 U. S. 165Finally, the Court of Appeals turned to the most imposing obstacle to this class action -- the notice requirement of Rule 23(c)(2). The District Court had held that both the Rule and the Due Process Clause of the Fifth Amendment required individual notice to all class members who could be identified. 41 F.R.D. at 151. Petitioner objected that mailed notice to the entire class would be prohibitively expensive, and argued that some form of publication notice would suffice. The Court of Appeals declined to settle this issue, noting that,"[o]n the record before us, we cannot arrive at any rational and satisfactory conclusion on the propriety of resorting to some form of publication as a means of giving the necessary notice to all members of the class on behalf of whom the action is stated to be commenced and maintained."391 F.2d at 569.The outcome of Eisen II was a remand for an evidentiary hearing on the questions of notice, manageability, adequacy of representation, and "any other matters which the District Court may consider pertinent and proper." Id. at 570. And in a ruling that aroused later controversy, the Court of Appeals expressly purported to retain appellate jurisdiction while the case was heard on remand.Eisen IIIAfter it held the evidentiary hearing on remand, which together with affidavits and stipulations provided the basis for extensive findings of fact, the District Court issued an opinion and order holding the suit maintainable as a class action. 52 F.R.D. 253 (1971). The court first noted that petitioner satisfied the criteria identified by the Court of Appeals for determining adequacy of representation under Rule 23(a)(4). Then it turned to the more difficult question of manageability. Under this general rubric, the court dealt with problems of the computation Page 417 U. S. 166 of damages, the mechanics of administering this suit as a class action, and the distribution of any eventual recovery. The last-named problem had most troubled the Court of Appeals, prompting its remark that, if "class members are not likely ever to share in an eventual judgment, we would probably not permit the class action to continue." 391 F.2d at 567. The District Court attempted to resolve this difficulty by embracing the idea of a "fluid class" recovery, whereby damages would be distributed to future odd-lot traders, rather than to the specific class members who were actually injured. The court suggested that "a fund equivalent to the amount of unclaimed damages might be established and the odd-lot differential reduced in an amount determined reasonable by the court until such time as the fund is depleted." 52 F.R.D. at 265. The need to resort to this expedient of recovery by the "next best class" arose from the prohibitively high cost of computing and awarding multitudinous small damages claims on an individual basis.Finally, the District Court took up the problem of notice. The court found that the prospective class included some six million individuals, institutions, and intermediaries of various sorts; that with reasonable effort some two million of these odd-lot investors could be identified by name and address; [Footnote 5] and that the names and addresses of an additional 250,000 persons who had participated in special investment programs involving Page 417 U. S. 167 odd-lot trading [Footnote 6] could also be identified with reasonable effort. Using the then current first-class postage rate of six cents, the court determined that stuffing and mailing each individual notice form would cost 10 cents. Thus, individual notice to all identifiable class members would cost $225,000, [Footnote 7] and additional expense would be incurred for suitable publication notice designed to reach the other four million class members.The District Court concluded, however, that neither Rule 23(c)(2) nor the Due Process Clause required so substantial an expenditure at the outset of this litigation. Instead, it proposed a notification scheme consisting of four elements: (1) individual notice to all member firms of the Exchange and to commercial banks with large trust departments; (2) individual notice to the approximately 2,000 identifiable class members with 10 or more odd-lot transactions during the relevant period; (3) individual notice to an additional 5,000 class members selected at random; and (4) prominent publication notice in the Wall Street Journal and in other newspapers in New York and California. The court calculated that this package would cost approximately $21,720.The only issue not resolved by the District Court in its first opinion on remand from Eisen II was who should bear the cost of notice. Because petitioner understandably declined to pay $21,720 in order to litigate an action Page 417 U. S. 168 involving an individual stake of only $70, this question presented something of a dilemma:"If the expense of notice is placed upon [petitioner], it would be the end of a possibly meritorious suit, frustrating both the policy behind private antitrust actions and the admonition that the new Rule 23 is to be given a liberal, rather than a restrictive, interpretation, Eisen II at 563. On the other hand, if costs were arbitrarily placed upon [respondents] at this point, the result might be the imposition of an unfair burden founded upon a groundless claim. In addition to the probability of encouraging frivolous class actions, such a step might also result in [respondents'] passing on to their customers, including many of the class members in this case, the expenses of defending these actions."52 F.R.D. at 269. Analogizing to the laws of preliminary injunctions, the court decided to impose the notice cost on respondents if petitioner could show a strong likelihood of success on the merits, and it scheduled a preliminary hearing on the merits to facilitate this determination. After this hearing the District Court issued an opinion and order ruling that petitioner was "more than likely" to prevail at trial and that respondents should bear 90% of the cost of notice, or $19,548. 54 F.R.D. 565, 567 (1972).Relying on the purported retention of jurisdiction by the Court of Appeals after Eisen II, respondents, on May 1, 1972, obtained an order directing the clerk of the District Court to certify and transmit the record for appellate review. Subsequently, respondents also filed a notice of appeal under 28 U.S.C. § 1291. Petitioner's motion to dismiss on the ground that the appeal had not been taken from a final order was denied by the Court of Appeals on June 29, 1972. Page 417 U. S. 169On May 1, 1973, the Court of Appeals issued Eisen III. 479 F.2d 1005. The majority disapproved the District Court's partial reliance on publication notice, holding that Rule 23(c)(2) required individual notice to all identifiable class members. The majority further ruled that the District Court had no authority to conduct a preliminary hearing on the merits for the purpose of allocating costs, and that the entire expense of notice necessarily fell on petitioner, as representative plaintiff. Finally, the Court of Appeals rejected the expedient of a fluid-class recovery, and concluded that the proposed class action was unmanageable under Rule 23(b)(3)(D). For all of these reasons, the Court of Appeals ordered the suit dismissed as a class action. One judge concurred in the result solely on the ground that the District Court had erred in imposing 90% of the notice costs on respondents. Petitioner's requests for rehearing and rehearing en banc were denied. 479 F.2d at 1020.Thus, after six and one-half years and three published decisions, the Court of Appeals endorsed the conclusion reached by the District Court in its original order in 1966 -- that petitioner's suit could not proceed as a class action. In its procedural history, at least, this litigation has lived up to Judge Lumbard's characterization of it as a "Frankenstein monster posing as a class action." Eisen II, 391 F.2d at 572.IIAt the outset we must decide whether the Court of Appeals in Eisen III had jurisdiction to review the District Court's orders permitting the suit to proceed as a class action and allocating the cost of notice. Petitioner contends that it did not. Respondents counter by asserting two independent bases for appellate jurisdiction: first, that the orders in question constituted a "final" Page 417 U. S. 170 decision within the meaning of 28 U.S.C. § 1291, [Footnote 8] and were therefore appealable as of right under that section; and, second, that the Court of Appeals in Eisen II expressly retained jurisdiction pending further development of a factual record on remand, and that consequently no new jurisdictional basis was required for the decision in Eisen III. Because we agree with the first ground asserted by respondents, we have no occasion to consider the second.Restricting appellate review to "final decisions" prevent the debilitating effect on judicial administration caused by piecemeal appellate disposition of what is, in practical consequence, but a single controversy. While the application of § 1291 in most cases is plain enough, determining the finality of a particular judicial order may pose a close question. No verbal formula yet devised can explain prior finality decisions with unerring accuracy or provide an utterly reliable guide for the future. [Footnote 9] We know, of course, that § 1291 does not Page 417 U. S. 171 limit appellate review to "those final judgments which terminate an action . . . ," Cohen v. Beneficial Loan Corp., 337 U.S. at 337 U. S. 545, but rather that the requirement of finality is to be given a "practical, rather than a technical construction." Id. at 337 U. S. 546. The inquiry requires some evaluation of the competing considerations underlying all questions of finality -- "the inconvenience and costs of piecemeal review on the one hand and the danger of denying justice by delay on the other." Dickinson v. Petroleum Conversion Corp., 338 U. S. 507, 338 U. S. 511 (1950) (footnote omitted).We find the instant case controlled by our decision in Cohen v. Beneficial Loan Corp., supra. There, the Court considered the applicability in a federal diversity action of a forum state statute making the plaintiff in a stockholder's derivative action liable for litigation expenses, if ultimately unsuccessful, and entitling the corporation to demand security in advance for their payment. The trial court ruled the statute inapplicable, and the corporation sought immediate appellate review over the stockholder's objection that the order appealed from was not final. This Court held the order appealable on two grounds. First, the District Court's finding was not "tentative, informal or incomplete," 337 U.S. at 337 U. S. 546, but settled conclusively the corporation's claim that it was entitled by state law to require the shareholder to post security for costs. Second, the decision did not constitute merely a "step toward final disposition of the merits of the case. . . ." Ibid. Rather, it concerned a collateral matter that could not be reviewed effectively on appeal from the final judgment. The Court summarized its conclusion in this way:"This decision appears to fall in that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, Page 417 U. S. 172 too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated."Ibid.Analysis of the instant case reveals that the District Court's order imposing 90% of the notice costs on respondents likewise falls within "that small class." It conclusively rejected respondents' contention that they could not lawfully be required to bear the expense of notice to the members of petitioner's proposed class. Moreover, it involved a collateral matter unrelated to the merits of petitioner's claims. Like the order in Cohen, the District Court's judgment on the allocation of notice costs was "a final disposition of a claimed right which is not an ingredient of the cause of action and does not require consideration with it," id. at 337 U. S. 546-547, and it was similarly appealable as a "final decision" under § 1291. In our view, the Court of Appeals therefore had jurisdiction to review fully the District Court's resolution of the class action notice problems in this case, for that court's allocation of 90% of the notice costs to respondents was but one aspect of its effort to construe the requirements of Rule 23(c)(2) in a way that would permit petitioner's suit to proceed as a class action. [Footnote 10]III .Turning to the merits of the case, we find that the District Court's resolution of the notice problems was Page 417 U. S. 173 erroneous in two respects. First, it failed to comply with the notice requirements of Rule 23(c)(2), and second, it imposed part of the cost of notice on respondents.ARule 23(c)(2) provides that, in any class action maintained under subdivision (b)(3), each class member shall be advised that he has the right to exclude himself from the action on request or to enter an appearance through counsel, and further that the judgment, whether favorable or not, will bind all class members not requesting exclusion. To this end, the court is required to direct to class members "the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort." [Footnote 11] We think the import of this language is unmistakable. Individual notice must be sent to all class members whose names and addresses may be ascertained through reasonable effort.The Advisory Committee's Note to Rule 23 reinforces this conclusion. See 28 U.S.C.App. p. 7765. The Advisory Committee described subdivision (c)(2) as "not merely discretionary," and added that the"mandatory notice pursuant to subdivision (c)(2). . . is designed to fulfill requirements of due process to which the class action procedure is, of course, subject."Id. at 7768. The Page 417 U. S. 174 Committee explicated its incorporation of due process standards by citation to Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306 (1950), and like cases.In Mullane, the Court addressed the constitutional sufficiency of publication notice, rather than mailed individual notice to known beneficiaries of a common trust fund as part of a judicial settlement of accounts. The Court observed that notice and an opportunity to be heard were fundamental requisites of the constitutional guarantee of procedural due process. It further stated that notice must be"reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections."Id. at 339 U. S. 314. The Court continued:"But when notice is a person's due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it. The reasonableness, and hence the constitutional validity, of any chosen method may be defended on the ground that it is, in itself, reasonably certain to inform those affected."Id. at 339 U. S. 315. The Court then held that publication notice could not satisfy due process where the names and addresses of the beneficiaries were known. [Footnote 12] In such cases, "the reasons Page 417 U. S. 175 disappear for resort to means less likely than the mails to apprise them of [an action's] pendency." Id. at 339 U. S. 318.In Schroeder v. City of New York, 371 U. S. 208 (1962), decided prior to the promulgation of amended Rule 23, the Court explained that Mullane required rejection of notice by publication where the name and address of the affected person were available. The Court stated that the "general rule" is that "notice by publication is not enough with respect to a person whose name and address are known or very easily ascertainable. . . ." Id. at 371 U. S. 212-213. The Court also noted that notice by publication had long been recognized as a poor substitute for actual notice, and that its justification was "difficult, at best.'" Id. at 371 U. S. 213.Viewed in this context, the express language and intent of Rule 23(c)(2) leave no doubt that individual notice must be provided to those class members who are identifiable through reasonable effort. In the present case, the names and addresses of 2,250,000 class members are easily ascertainable, and there is nothing to show that individual notice cannot be mailed to each. For these class members, individual notice is clearly the "best notice practicable" within the meaning of Rule 23(c)(2) and our prior decisions.Petitioner contends, however, that we should dispense with the requirement of individual notice in this case, and he advances two reasons for our doing so. First, the prohibitively high cost of providing individual notice to 2,250,000 class members would end this suit as a class action and effectively frustrate petitioner's attempt to vindicate the policies underlying the antitrust and securities Page 417 U. S. 176 laws. Second, petitioner contends that individual notice is unnecessary in this case, because no prospective class member has a large enough stake in the matter to justify separate litigation of his individual claim. Hence, class members lack any incentive to opt out of the class action even if notified.The short answer to these arguments is that individual notice to identifiable class members is not a discretionary consideration to be waived in a particular case. It is, rather, an unambiguous requirement of Rule 23. As the Advisory Committee's Note explained, the Rule was intended to insure that the judgment, whether favorable or not, would bind all class members who did not request exclusion from the suit. 281 U.S.C.App. pp. 7765-7768. Accordingly, each class member who can be identified through reasonable effort must be notified that he may request exclusion from the action and thereby preserve his opportunity to press his claim separately or that he may remain in the class and perhaps participate in the management of the action. There is nothing in Rule 23 to suggest that the notice requirements can be tailored to fit the pocketbooks of particular plaintiffs. [Footnote 13]Petitioner further contends that adequate representation, rather than notice, is the touchstone of due process in a class action, and therefore satisfies Rule 23. We think this view has little to commend it. To begin with, Rule 23 speaks to notice as well as to adequacy of representation, and requires that both be provided. Moreover, petitioner's argument proves too much, for it Page 417 U. S. 177 quickly leads to the conclusion that no notice at all, published or otherwise, would be required in the present case. This cannot be so, for quite apart from. what due process may require, the command of Rule 23 is clearly to the contrary. We therefore conclude that Rule 23(c)(2) requires that individual notice be sent to all class members who can be identified with reasonable effort. [Footnote 14]BWe also agree with the Court of Appeals that petitioner must bear the cost of notice to the members of his class. The District Court reached the contrary conclusion and imposed 90% of the notice cost on respondents. This decision was predicated on the court's finding, made after a preliminary hearing on the merits of the case, that petitioner was "more than likely" to prevail on his claims. Apparently, that court interpreted Rule 23 to authorize such a hearing as part of the determination whether a suit may be maintained as a class action. We disagree.We find nothing in either the language or history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action. Indeed, such a procedure contravenes the Rule by allowing a representative plaintiff to secure the benefits of a class action without first satisfying the requirements for it. He is thereby allowed to obtain a determination on the merits of the claims advanced on Page 417 U. S. 178 behalf of the class without any assurance that a class action may be maintained. This procedure is directly contrary to the command of subdivision (c)(1) that the court determine whether a suit denominated a class action may be maintained as such "[a]s soon as practicable after the commencement of [the] action. . . ." In short, we agree with Judge Wisdom's conclusion in Miller v. Mackey International, 452 F.2d 424 (CA5 1971), where the court rejected a preliminary inquiry into the merits of a proposed class action:"In determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met."Id. at 427. Additionally, we might note that a preliminary determination of the merits may result in substantial prejudice to a defendant, since of necessity it is not accompanied by the traditional rules and procedures applicable to civil trials. The court's tentative findings, made in the absence of established safeguards, may color the subsequent proceedings and place an unfair burden on the defendant.In the absence of any support under Rule 23, petitioner's effort to impose the cost of notice on respondents must fail. The usual rule is that a plaintiff must initially bear the cost of notice to the class. The exceptions cited by the District Court related to situations where a fiduciary duty preexisted between the plaintiff and defendant, as in a shareholder derivative suit. [Footnote 15] Where, as here, the relationship between the parties is truly adversary, Page 417 U. S. 179 the plaintiff must pay for the cost of notice as part of the ordinary burden of financing his own suit.Petitioner has consistently maintained, however, that he will not bear the cost of notice under subdivision (c)(2) to members of the class as defined in his original complaint. See 479 F.2d at 1008; 52 F.R.D. at 269. We therefore remand the cause with instructions to dismiss the class action as so defined. [Footnote 16]The judgment of the Court of Appeals is vacated, and the cause remanded for proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtEisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974)Eisen v. Carlisle & JacquelinNo. 73-203Argued February 25, 1974Decided May 28, 1974417 U.S. 156SyllabusPetitioner brought a class action under Fed.Rule Civ.Proc. 23 on behalf of himself and all odd-lot traders on the New York Stock Exchange for a certain four-year period, charging respondent brokerage firms, which handled 99% of the Exchange's odd-lot business, and respondent Exchange with violating the antitrust and securities laws. There followed a series of decisions by the District Court and the Court of Appeals. The District Court ultimately decided that the suit could be maintained as a class action, and, after finding that some two and a quarter million members of the prospective class could be identified by name and address with reasonable effort and that it would cost $225,000 to send individual notice to all of them, proposed a notification scheme providing for individual notice to only a limited number of prospective class members and notice by publication to the remainder. The District Court then held a preliminary hearing on the merits, and after finding that petitioner was "more than likely" to prevail at trial, ruled that respondents should bear 90% of the costs of the notification scheme. The Court of Appeals reversed and ordered the suit dismissed as a class action, disapproving the District Court's partial reliance on publication notice. The Court of Appeals held that Rule 23(c)(2) required individual notice to all identifiable class members; that the District Court had no authority to hold a preliminary hearing on the merits for the purpose of allocating notice costs; that the entire notice expense should fall on petitioner; and that the proposed class action was unmanageable under Rule 23(b)(3)(D). Petitioner contends that the Court of Appeals had no jurisdiction to review the District Court's orders, and further, that the Court of Appeals decided the above issues incorrectly.Held:1. The District Court's resolution of the notice problems constituted a "final" decision within the meaning of 28 U.S.C. § 1291, and was therefore appealable as of right under that section. Pp. 417 U. S. 169-172.(a) Section 1291 does not limit appellate review to "those Page 417 U. S. 157 final judgments which terminate an action . . . ," but rather the requirement of finality is to be given a "practical, rather than a technical construction." Cohen v. Beneficial Loan Corp., 337 U. S. 541, 337 U. S. 545-546. Pp. 417 U. S. 170-172.(b) The District Court's decision that respondents could lawfully be required to bear the costs of notice involved a collateral matter unrelated to the merits of petitioner's claims and was "a final disposition of a claimed right which is not an ingredient of the cause of action, and does not require consideration with it," Cohen, supra, at 337 U. S. 546-547. P. 417 U. S. 172.2. The District Court's resolution of the notice problems failed to comply with the notice requirement of Rule 23(c)(2). Pp. 417 U. S. 173-177.(a) The express language and intent of Rule 23(c)(2) leave no doubt that individual notice must be sent to all class members who can be identified through reasonable effort. Here there was nothing to show that individual notice could not be mailed to each of the two and a quarter million class members whose names and addresses were easily ascertainable, and, for these class members, individual notice was clearly the "best notice practicable" within the meaning of Rule 23(c)(2). Pp. 417 U. S. 173-175.(b) The facts that the cost of sending individual notices would be prohibitively high to petitioner, who has only a $70 stake in the matter, or that individual notice might be unnecessary because no prospective class member has a large enough stake to justify separate litigation of his individual claim, do not dispense with the individual notice requirement, since individual notice to identifiable class members is not a discretionary consideration to be waived in a particular case, but an unambiguous requirement of Rule 23. Pp. 417 U. S. 175-176.(c) Adequate representation, in itself, does not satisfy Rule 23(c)(2), since the Rule speaks to notice, as well as to adequacy of representation, and requires that both be provided. Otherwise no notice at all, published or otherwise, would be required in this case. Pp. 417 U. S. 176-177.3. Petitioner must bear the cost of notice to the members of his class, and it was improper for the District Court to impose part of the cost on respondents. Pp. 417 U. S. 177-179.(a) There is nothing in either the language or history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether Page 417 U. S. 158 it may be maintained as a class action, and, indeed, such a procedure contravenes the Rule by allowing a representative plaintiff to secure the benefits of a class action without first satisfying the requirements of the Rule. Pp. 417 U. S. 177-178.(b) A preliminary determination of the merits may substantially prejudice a defendant, since it is unaccompanied by the traditional rules and procedures applicable to civil trials. P. 417 U. S. 178.(c) Where, as here, the relationship between the parties is truly adversary, the plaintiff must pay for the cost of notice as part of the ordinary burden of financing his own suit. Pp. 417 U. S. 178-179.479 F.2d 1005, vacated and remanded.POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, BLACKMUN, and REHNQUIST, JJ., joined. DOUGLAS, J., filed an opinion dissenting in part, in which BRENNAN and MARSHALL, JJ., joined, post, p. 417 U. S. 179. Page 417 U. S. 159

1983_83-128

JUSTICE REHNQUIST delivered the opinion of the Court.Respondents William Gouveia, Robert Ramirez, Adolpho Reynoso, and Philip Segura were convicted of murdering a fellow inmate at a federal prison in Lompoc, Cal. Respondents Robert Mills and Richard Pierce were convicted of a later murder of another inmate at the same institution. Prison officials placed each respondent in administrative detention shortly after the murders, and they remained there for an extended period of time before they were eventually indicted on criminal charges. On appeal of respondents' convictions, the en banc Court of Appeals for the Ninth Circuit held by divided vote that they had a Sixth Amendment right to an attorney during the period in which they were held in administrative detention before the return of indictments against them, and that, because they had been denied that right, their convictions had to be overturned and their indictments dismissed. 704 F.2d 1116 (1983). We granted certiorari to review the Court of Appeals' novel application of our Sixth Amendment precedents, 464 U.S. 913 (1983), and we now reverse.On November 11, 1978, Thomas Trejo, an inmate at the Federal Correctional Institution in Lompoc, Cal., was found dead from 45 stab wounds in the chest. Prison officials and agents from the Federal Bureau of Investigation began independent Page 467 U. S. 183 investigations of the murder. Prison officials immediately suspected respondents Reynoso and Gouveia, and placed them in the Administrative Detention Unit (ADU) at Lompoc. They were released back into the general prison population on November 22, 1978, but after officials obtained further information about the murder, on December 4, 1978, they returned Reynoso and Gouveia to the ADU, and placed respondents Segura and Ramirez in the ADU as well. Later in December, prison officials held disciplinary hearings, determined that all four respondents had participated in the murder of inmate Trejo, and ordered their continued confinement in the ADU. While in the ADU, respondents were separated from the general prison population and confined to individual cells. Although their participation in various prison programs was curtailed, they were still allowed regular visitation rights, exercise periods, access to legal materials, and unmonitored phone calls. 704 F.2d at 1118; see generally 28 CFR §§ 541.19, 541.20(d) (1983). Respondents remained in the ADU without appointed counsel for approximately 19 months. On June 17, 1980, a federal grand jury returned an indictment against respondents on charges of first-degree murder and conspiracy to commit murder in violation of 18 U.S.C. §§ 1111 and 1117, respectively. On July 14, 1980, respondents were arraigned in federal court, at which time a Federal Magistrate appointed counsel for them.Before trial, respondents filed a motion to dismiss their indictments, arguing that the delay of approximately 19 months between the commission of the crime and the return of the indictments violated their due process rights under the Fifth Amendment or, alternatively, their Sixth Amendment right to a speedy trial, and that their confinement in the ADU without appointment of counsel during that period violated their Sixth Amendment right to counsel. The District Court for the Central District of California denied their motion, and respondents proceeded to trial. Their first trial, which lasted approximately four weeks, ended in a mistrial. On retrial, respondents were convicted on both counts and Page 467 U. S. 184 were sentenced to consecutive life and 99-year terms of imprisonment.The scenario is much the same in the case of Mills and Pierce. Inmate Thomas Hall was stabbed to death at Lompoc on August 22, 1979. Immediately afterwards, Mills and Pierce were examined by a prison doctor and questioned by FBI agents regarding the murder. Prison officials suspected them of involvement in the murder and placed them in the ADU pending further investigation. On September 13, 1979, prison officials conducted a disciplinary hearing, concluded that respondents had murdered inmate Hall, and ordered their continued confinement in the ADU, where they remained for the next eight months. On March 27, 1980, a federal grand jury returned an indictment against Mills and Pierce on charges of first-degree murder in violation of 18 U.S.C. § 1111 and of conveyance of a weapon in prison in violation of 18 U.S.C. § 1792, and against Pierce on a charge of assault in violation of 18 U.S.C. § 113(c). At the time of their arraignment on April 21, 1980, Mills and Pierce were appointed counsel and were released from the ADU.Before trial, Mills and Pierce also filed a motion to dismiss their indictments, alleging that the 8-month preindictment delay violated their Fifth Amendment due process rights and their Sixth Amendment speedy trial right, and that their confinement without counsel for that period violated their Sixth Amendment right to counsel. The District Court for the Central District of California granted the motion to dismiss. A panel of the Court of Appeals for the Ninth Circuit reversed and remanded for trial, holding that respondents' Sixth Amendment rights were not triggered during their administrative segregation because they had not yet been arrested and accused, and that respondents had made an insufficient showing of actual prejudice from the preindictment delay so as to justify dismissal of the indictments on due process grounds. United States v. Mills, 641 F.2d 785, cert. denied, 454 U.S. 902 (1981). Respondents Mills and Page 467 U. S. 185 Pierce were then convicted on all counts and sentenced to life imprisonment.The Court of Appeals, proceeding en banc, consolidated the appeals of all six respondents and addressed only the issue of whether the Sixth Amendment requires the appointment of counsel before indictment for indigent inmates confined in administrative detention while being investigated for criminal activities. 704 F.2d at 1119. [Footnote 1] The Court of Appeals majority recognized that a plurality of this Court had concluded in Kirby v. Illinois, 406 U. S. 682 (1972), that the Sixth Amendment right to counsel attaches only when formal judicial proceedings are initiated against an individual by way of indictment, information, arraignment, or preliminary hearing. The majority recognized that no such proceedings had been initiated against respondents during the period of time for which they asserted a right to appointed counsel in this case.The majority went on to note, however, that Kirby is not a prison case and that the point at which the Sixth Amendment right to counsel is triggered is different in the prosecution of prison crimes. 704 F.2d at 1120. In so holding, the majority analogized to Sixth Amendment speedy trial cases, where this Court has held that the Sixth Amendment speedy trial right is triggered when an individual is arrested and held to Page 467 U. S. 186 answer criminal charges. See United States v. Marion, 404 U. S. 307, 404 U. S. 320 (1971). The en banc majority reasoned that just as such an arrest constitutes an "accusation" for Sixth Amendment speedy trial purposes, the administrative detention of an inmate for more than 90 days because of a pending felony investigation constitutes an "accusation" for Sixth Amendment right to counsel purposes. [Footnote 2] Thus, according to the Court of Appeals' holding, an indigent inmate isolated in administrative detention while the subject of a felony investigation must be afforded counsel after 90 days, or else be released back into the prison population, in order to ensure that he or his lawyer will be able to take preindictment investigatory steps to preserve his defense at trial. 704 F.2d at 1124.Applying its test to the facts of this case, the Court of Appeals majority held that each respondent had been denied his Sixth Amendment right to counsel. It concluded that the record showed that each respondent had been held in administrative detention longer than 90 days, that each had been held at least in part because of a pending felony investigation, [Footnote 3] and that each had requested and had been denied counsel during his confinement in the ADU. The majority went on to conclude that the appropriate remedy for redressing Page 467 U. S. 187 the Sixth Amendment violations in this case was reversal of respondents' convictions and dismissal of the indictments against them. [Footnote 4]Five judges dissented from the en banc majority's Sixth Amendment holding. Relying on Kirby v. Illinois, supra, the dissent concluded that the Sixth Amendment right to counsel is triggered by the initiation of formal criminal proceedings even in the prison context, and that the majority's conclusion to the contrary shows a misunderstanding of the purpose of the counsel guarantee. 704 F.2d at 1127-1129. We agree with the dissenting judges' application of our precedents to this situation, and, accordingly, we reverse the en banc majority's holding that respondents had a Sixth Amendment right to the appointment of counsel during their preindictment segregation.The Sixth Amendment guarantees that, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." As the Court of Appeals majority noted, our cases have long recognized that the right to counsel attaches only at or after the initiation of adversary judicial proceedings against the defendant. In Kirby v. Illinois, supra, a plurality of the Court summarized our prior cases as follows:"In a line of constitutional cases in this Court stemming back to the Court's landmark opinion in Powell v. Alabama, 287 U. S. 45, it has been firmly established that a person's Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him. See Powell v. Alabama, supra; Johnson v. Zerbst, Page 467 U. S. 188 304 U. S. 458; Hamilton v. Alabama, 368 U. S. 52; Gideon v. Wainwright, 372 U. S. 335; White v. Maryland, 373 U. S. 59; Massiah v. United States, 377 U. S. 201; United States v. Wade, 388 U. S. 218; Gilbert v. California, 388 U. S. 263; Coleman v. Alabama, 399 U. S. 1."". . . [W]hile members of the Court have differed as to the existence of the right to counsel in the contexts of some of the above cases, all of those cases have involved points of time at or after the initiation of adversary judicial criminal proceedings -- whether by way of formal charge, preliminary hearing, indictment, information, or arraignment."Id. at 406 U. S. 688-689 (emphasis in original). The view that the right to counsel does not attach until the initiation of adversary judicial proceedings has been confirmed by this Court in cases subsequent to Kirby. See Estelle v. Smith, 451 U. S. 454, 451 U. S. 469-470 (1981); Moore v. Illinois, 434 U. S. 220, 434 U. S. 226-227 (1977); Brewer v. Williams, 430 U. S. 387, 430 U. S. 398-399 (1977); United States v. Mandujano, 425 U. S. 564, 425 U. S. 581 (1976) (opinion of BURGER, C.J.). [Footnote 5]That interpretation of the Sixth Amendment right to counsel is consistent not only with the literal language of the Amendment, which requires the existence of both a "criminal prosecutio[n]" and an "accused," but also with the purposes which we have recognized that the right to counsel serves. We have recognized that the "core purpose" of the counsel guarantee is to assure aid at trial, "when the accused [is] confronted Page 467 U. S. 189 with both the intricacies of the law and the advocacy of the public prosecutor." United States v. Ash, 413 U. S. 300, 413 U. S. 309 (1973). Indeed the right to counsel"embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel."Johnson v. Zerbst, 304 U. S. 458, 304 U. S. 462-463 (1938). Although we have extended an accused's right to counsel to certain "critical" pretrial proceedings, United States v. Wade, 388 U. S. 218 (1967), we have done so recognizing that, at those proceedings, "the accused [is] confronted, just as at trial, by the procedural system, or by his expert adversary, or by both," United States v. Ash, supra, at 413 U. S. 310, in a situation where the results of the confrontation "might well settle the accused's fate and reduce the trial itself to a mere formality." United States v. Wade, supra, at 388 U. S. 224.Thus, given the plain language of the Amendment and its purpose of protecting the unaided layman at critical confrontations with his adversary, our conclusion that the right to counsel attaches at the initiation of adversary judicial criminal proceedings "is far from a mere formalism." Kirby v. Illinois, 406 U.S. at 406 U. S. 689. It is only at that time"that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law."Ibid.The Court of Appeals departed from our consistent interpretation of the Sixth Amendment in these cases, and in so doing, fundamentally misconceived the nature of the right to counsel guarantee. We agree with the dissent that the majority's Page 467 U. S. 190 analogy to Sixth Amendment speedy trial cases is inapt. Our speedy trial cases hold that that Sixth Amendment right may attach before an indictment and as early as the time of "arrest and holding to answer a criminal charge," United States v. MacDonald, 456 U. S. 1, 456 U. S. 6-7 (1982); United States v. Lovasco, 431 U. S. 783, 431 U. S. 788-789 (1977); Dillingham v. United States, 423 U. S. 64 (1975) (per curiam); United States v. Marion, 404 U.S. at 404 U. S. 320, but we have never held that the right to counsel attaches at the time of arrest. This difference is readily explainable, given the fact that the speedy trial right and the right to counsel protect different interests. While the right to counsel exists to protect the accused during trial-type confrontations with the prosecutor, the speedy trial right exists primarily to protect an individual's liberty interest,"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."United States v. MacDonald, supra, at 456 U. S. 8. See Barker v. Wingo, 407 U. S. 514, 407 U. S. 532-533 (1972); United States v. Marion, supra, at 404 U. S. 320. Thus, the majority's attempt to draw an analogy between an arrest and an inmate's administrative detention pending investigation may have some relevance in analyzing when the speedy trial right attaches in this context, but it is not relevant to a proper determination of when the right to counsel attaches. [Footnote 6] Page 467 U. S. 191The Court of Appeals' holding also confuses the purpose of the right to counsel with purposes that are served by the Fifth Amendment due process guarantee and the statutes of limitations applicable to the particular crime being investigated. The majority concludes that the extension of the right to counsel to this prison context is necessary to protect against the possibility that the Government may delay the initiation of formal charges, thus delaying the appointment of counsel, while it develops its case against the isolated and unaided inmate. 704 F.2d at 1122. By the time the Government decides to bring charges, the majority felt, witnesses' memories could have dimmed, alibi witnesses could have been transferred to other facilities, and physical evidence could have deteriorated. Id. at 1126.Those concerns, while certainly legitimate ones, are simply not concerns implicating the right to counsel, and we reaffirm that the mere"possibility of prejudice [to a defendant resulting from the passage of time] . . . is not itself sufficient reason to wrench the Sixth Amendment from its proper context."United States v. Marion, supra, at 404 U. S. 321-322. In holding that the appointment of counsel or the release of the inmate from segregation could remedy its concerns, the Court of Appeals must have concluded, quite illogically, we believe, that the presence of the inmate in the general prison population or the appointment of a lawyer could somehow prevent the deterioration of physical evidence, or that the inmate or his counsel could begin an effective investigation of the crime within the restricted prison walls before even being able to discover the nature of the Government's case. Of course, both inside and outside the prison, it may well be true that, in some cases, preindictment investigation could help a defendant prepare a better defense. But, as we have noted, our cases have never suggested that the purpose of the right to counsel is to provide a defendant with a preindictment private investigator, and we see no reason to adopt that novel interpretation of the right to counsel in this case. Page 467 U. S. 192Thus, at bottom, the majority's concern is that, because an inmate suspected of a crime is already in prison, the prosecution may have little incentive promptly to bring formal charges against him, and that the resulting preindictment delay may be particularly prejudicial to the inmate, given the problems inherent in investigating prison crimes, such as the transient nature of the prison population and the general reluctance of inmates to cooperate. But applicable statutes of limitations protect against the prosecution's bringing stale criminal charges against any defendant, United States v. Lovasco, supra, at 431 U. S. 788-789; United States v. Marion, supra, at 404 U. S. 322, and, beyond that protection, the Fifth Amendment requires the dismissal of an indictment, even if it is brought within the statute of limitations, if the defendant can prove that the Government's delay in bringing the indictment was a deliberate device to gain an advantage over him, and that it caused him actual prejudice in presenting his defense. United States v. Lovasco, supra, at 431 U. S. 789-790; United States v. Marion, supra, at 404 U. S. 324. [Footnote 7] Those protections apply to criminal defendants within and without the prison walls, and we decline to depart from our traditional interpretation of the Sixth Amendment right to counsel in order to provide additional protections for respondents here.We conclude that the Court of Appeals was wrong in holding that respondents were constitutionally entitled to the appointment of counsel while they were in administrative segregation and before any adversary judicial proceedings had been initiated against them. Accordingly, we reverse Page 467 U. S. 193 the judgment of the Court of Appeals and remand for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtUnited States v. Gouveia, 467 U.S. 180 (1984)United States v. GouveiaNo. 83-128Argued March 20, 1984Decided May 29, 1984467 U.S. 180SyllabusFour of the respondents, who were all inmates in a federal prison, were placed in administrative detention in individual cells during the investigation of the 1978 murder of a fellow inmate. They remained in administrative detention without appointed counsel for approximately 19 months before their indictment on federal criminal charges and their arraignment in Federal District Court, when counsel was appointed for them. The District Court denied their motion to dismiss the indictment on the asserted ground that their administrative confinement without appointed counsel violated their Sixth Amendment right to counsel, and they were ultimately convicted of murder. The other two respondents were placed in administrative detention without appointed counsel for approximately eight months during the investigation of a 1979 murder of another inmate. Counsel was appointed for them and they were released from administrative detention when they were arraigned on a federal indictment. They were also ultimately convicted of murder over their contention that the preindictment administrative confinement violated their Sixth Amendment right to counsel. On consolidated appeals, the Court of Appeals reversed. Although recognizing that a plurality of this Court had concluded in Kirby v. Illinois, 406 U. S. 682, that the Sixth Amendment right to counsel attaches only when formal judicial proceedings are initiated against an individual by way of indictment, information, arraignment, or preliminary hearing, the Court of Appeals noted that Kirby was not a prison case, and concluded that an indigent inmate who is the subject of a felony investigation and who is isolated in administrative detention for more than 90 days must be afforded counsel after 90 days or else be released back into the prison population.Held: Respondents were not constitutionally entitled to the appointment of counsel while they were in administrative segregation and before any adversary judicial proceedings had been initiated against them. Pp. 467 U. S. 187-192.(a) The right to counsel attaches only at or after the initiation of adversary judicial proceedings against the defendant. Cf. Kirby v. Illinois, supra, at 406 U. S. 688-689. This interpretation of the Sixth Amendment right to counsel is consistent not only with the literal language of the Page 467 U. S. 181 Amendment, which requires the existence of both a "criminal prosecutio[n]" and an "accused," but also with the purposes that the right to counsel serves, including assuring aid at trial and at "critical" pretrial proceedings when the accused is confronted with the intricacies of criminal law or with the expert advocacy of the public prosecutor, or both. Pp. 467 U. S. 187-189.(b) The Court of Appeals' analogy to Sixth Amendment speedy trial cases -- which hold that that Sixth Amendment right may attach as early as the time of arrest -- is inapt. The speedy trial right and the right to counsel protect different interests, and any analogy between an arrest and an inmate's administrative detention pending investigation is not relevant to a proper determination of when the right to counsel attaches. Pp. 467 U. S. 189-190.(c) The Court of Appeals' holding also confuses the purpose of the right to counsel with purposes that are served by the Fifth Amendment due process guarantee and the statutes of limitations applicable to the particular crime being investigated. The court was concerned with affording protection against the possibility that the Government might delay the initiation of formal charges while it developed its case against the isolated and unaided inmate, during which time physical evidence might deteriorate, witnesses' memories might dim, and alibi witnesses might be transferred to other facilities. Such concerns, while legitimate ones, do not implicate the right to counsel. Providing a defendant with a preindictment private investigator is not a purpose of the right to counsel. Pp. 467 U. S. 191-192.704 F.2d 1116, reversed and remanded.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, POWELL, and O'CONNOR, JJ., joined. STEVENS, J., filed an opinion concurring in the judgment, in which BRENNAN, J., joined, post, p. 467 U. S. 193. MARSHALL, J., filed a dissenting opinion, post, p. 467 U. S. 199. Page 467 U. S. 182

1991_90-1361

Dennis G. Lyons, Stuart E. Seigel, and Kent A. Yalowitz filed briefs for petitioners in No. 90-1361.Herbert Stettin argued the cause for respondents in both cases. With him on the brief for respondent Smith were Louis R. Cohen, F. David Lake, Jr., and John Aramburu. Vance E. Salter, Thomas F. Noone, Edward P. Zujkowski, Mortimer M. Caplin, Walter B. Slocombe, Albert G. Lauber, Jr., Julia L. Porter, and James E. Salles filed a brief for respondent Bank of New York. Barbara E. Vicevich filed a brief for respondent Shutts & Bowen. tt A brief of amici curiae was filed for the State of California et al. by Mary Sue Terry, Attorney General of Virginia, H. Lane Kneedler, Chief Deputy Attorney General, K. Marshall Cook, Deputy Attorney General, Barbara M. Rose, Senior Assistant Attorney General, and Martha B. Brissette and John Patrick Griffin, Assistant Attorneys General, Daniel E. Lungren, Attorney General of California, Richard Blumenthal, Attorney General of Connecticut, Charles M. Oberly III, Attorney General of Delaware, John Payton, Corporation Counsel of the District of Columbia, Robert A. Butterworth, Attorney General of Florida, Michael J. Bowers, Attorney General of Georgia, Warren Price III, Attorney General of Hawaii, Roland W Burris, Attorney General of Illinois, Linley E. Pearson, Attorney General of Indiana, Bonnie J. Campbell, Attorney General of Iowa, Robert T. Stephan, Attorney General of Kansas, William J. Guste, Jr., Attorney General of Louisiana, Michael E. Carpenter, Attorney General of Maine, J. Joseph Curran, Jr., Attorney General of Maryland, Scott Harshbarger, Attorney General of Massachusetts, Frank J. Kelley, Attorney General of Michigan, Hubert H. Humphrey III, Attorney General of Minnesota, Michael C. Moore, Attorney General of Mississippi, William L. Webster, Attorney General of Missouri, Marc Racicot, Attorney General of Montana, Robert J. Del Tufo, Attorney General of New Jersey, Tom Udall, Attorney General of New Mexico, Robert Abrams, Attorney General of New York, Nicholas J. Spaeth, Attorney General of North Dakota, Dave Frohnmayer, Attorney General of Oregon, Ernest D. Preate, Jr., Attorney General of Pennsylvania, James E. O'Neil, Attorney General of Rhode Island, T. Travis Medlock, Attorney General of South Carolina, Charles W Burson, Attorney General of Tennessee, Dan Morales, Attorney General of Texas, R. Paul Van Dam, Attorney General of Utah, Mario J. Palumbo, Attorney General of West Virginia, and Victor A. Kovner, Corporation Counsel of the City of New York.50JUSTICE THOMAS delivered the opinion of the Court. These cases require us to decide whether a trustee appointed to liquidate and distribute property as part of a Chapter 11 bankruptcy plan must file income tax returns and pay income tax under the Internal Revenue Code.IMiami Center Limited Partnership borrowed money from the Bank of New York (Bank) to develop "Miami Center," a hotel and office building complex in Miami, Florida. In August 1984, after it defaulted on the loan, MCLP and four affiliated debtors-Holywell Corporation, Chopin Associates, Miami Center Corporation, and Theodore B. Gould-each filed Chapter 11 bankruptcy petitions. The Bankruptcy Court consolidated the five cases.Prior to confirmation of a Chapter 11 plan, the debtors represented their own bankruptcy estates as debtors in possession. See 11 U. S. C. § 1101(1). The estates of Gould and Holywell contained two principal assets: equity in Miami Center and cash proceeds from the postbankruptcy sale of certain real estate in Washington, D. C., known as the Washington Properties.In August 1985, the Bank and other creditors approved a "Consolidated Plan of Reorganization." The plan required the debtors to give up their interests in Miami Center and the proceeds from the sale of the Washington Properties, but otherwise permitted them to remain in business. Part V of the plan provided:"1. A Trust is hereby declared and established on behalf of the Debtors ... and an individual to be appointed by the Court ... is designated as Trustee of all property of the estates of the Debtors ... , including but not limited to, Miami Center [and] the Washington Proceeds ... , to hold, liquidate, and distribute such Trust Property according to the terms of this Plan. The Trust shall be known as the 'Miami Center Liquidating Trust.'51"2 .... [A]ll right, title and interest of the Debtors in and to the Trust Property, including Miami Center, shall vest in the Trustee, without further act or deed by the Debtors .... " App. 41.The plan required the trustee to liquidate and distribute all of the trust property to the creditors of the various bankruptcy estates. It empowered the trustee to "[m]anage, operate, improve, and protect the Trust Property"; to "[r]elease, convey, or assign any right, title or interest in or about the Trust Property"; and to perform other, similar actions. Id., at 42. The plan said nothing about whether the trustee had to file income tax returns or pay any income tax due. The United States did not object to its confirmation.The plan took effect on October 10, 1985. The trustee appointed by the court, respondent Fred Stanton Smith, immediately sold Miami Center to the Bank in consideration for cash and cancellation of the Bank's claim. The trustee then distributed these and other assets to third-party creditors. Holywell Corporation filed a tax return for the fiscal year ending July 31, 1985. The income for this fiscal year included capital gains earned in the sale of the Washington Properties. Holywell asked the trustee to pay the taxes owed. Neither the corporate debtors nor the trustee filed federal income tax returns for any fiscal year ending after July 31, 1985. The income for these years included the capital gains earned in the sale of Miami Center and interest earned by reinvesting the proceeds.In December 1987, the trustee sought a declaratory judgment from the Bankruptcy Court that he had no duty to file income tax returns or pay income tax under the federal income tax laws. The United States and the debtors opposed the action. The Bankruptcy Court declared that the trustee did not have to make any federal tax returns or pay any taxes. 85 B. R. 898 (SD Fla. 1988). The District Court, in an unreported opinion, and the Court of Appeals, 911 F.2d 1539 (CA111990), both affirmed. The United States, in No.5290-1484, and the debtors, in No. 90-1361, each petitioned this Court for a writ of certiorari. We granted review. 500 U. S. 941 (1991).IIThe Internal Revenue Code ties the duty to pay federal income taxes to the duty to make an income tax return. See 26 U. S. C. § 6151(a) ("[W]hen a return of a tax is required ... the person required to make such return shall ... pay such tax"). We conclude in this case that the trustee must pay the tax due on the income attributable to the corporate debtors' property because § 6012(b)(3) requires him to make a return as the "assignee" of the "property ... of a corporation." We further hold that the trustee must pay the tax due on the income attributable to the individual debtor's property because § 6012(b)(4) requires him to make a return as the "fiduciary" of a "trust." Finally, we decide that the United States did not excuse the trustee from these duties by failing to object to the plan.AWe first consider the trustee's duties with respect to the corporate debtors. Section 6012(b)(3) provides:"(3) Receivers, trustees and assignees for corporations"In a case where a receiver, trustee in a case under title 11 of the United States Code, or assignee, by order of a court of competent jurisdiction, by operation of law or otherwise, has possession of or holds title to all or substantially all the property or business of a corporation, whether or not such property or business is being operated, such receiver, trustee, or assignee shall make the return of income for such corporation in the same manner and form as corporations are required to make such returns."The parties disagree about whether the trustee in this case is a "receiver," a "trustee in a case under title 11 of53the United States Code [i. e., the Bankruptcy Code]," or an "assignee." We hold that the trustee is an "assignee" of the corporate debtors under § 6012(b)(3). Because the parties do not argue that the trustee's duties would differ under another characterization, we decline to consider whether the trustee would qualify as a receiver or bankruptcy trustee.The plan, as noted above, transferred the corporate debtors' estates to respondent Smith as trustee for the Miami Center Liquidating Trust. The respondents do not dispute that the trustee meets the usual definition of the word "assignee" in both ordinary and legal usage. See Webster's Third New International Dictionary 132 (1986) (defining an "assignee" as "one to whom a right or property is legally transferred"); Black's Law Dictionary 118-119 (6th ed. 1990) (defining an "assignee" as "[a] person to whom an assignment is made" and an "assignment" as "[t]he act of transferring to another all or part of one's property, interest, or rights"); cf. 26 CFR § 301.6036-1(a)(3) (1991) (defining an "assignee for the benefit of ... creditors" as any person who takes possession of and liquidates property of a debtor for distribution to creditors). They argue, however, that courts have applied § 6012(b)(3) only in situations in which a person winds up the business of a dissolving corporation, see, e. g., First Nat. Bank of Greeley, Colo. v. United States, 86 F.2d 938,942 (CAlO 1936), or a person stands in the place of management in operating the day-to-day business of a distressed corporation, see, e. g., Louisville Property Co. v. Commissioner, 140 F.2d 547, 548 (CA6 1944). They conclude that § 6012(b)(3) cannot apply to the trustee in this case because he did neither. We find this argument unpersuasive.Nothing in § 6012(b)(3) suggests that the word "assignee" is limited in the manner proposed by the respondents. The statute does not make dissolution necessary; it applies whether the corporation transfers "all" or "substantially all" of its property. It does not require the assignee to manage the corporation's business after the transfer of property; it54expressly requires the assignee to make a return "whether or not [the assigned] property or business is being operated." Ibid. We therefore conclude that § 6012(b)(3) applies to the trustee in this case. As the assignee of "all" or "substantially all" of the property of the corporate debtors, the trustee must file the returns that the corporate debtors would have filed had the plan not assigned their property to the trustee.BWe next consider the trustee's duties with respect to the individual debtor, Theodore B. Gould. The parties agree that § 6012(b)(3) does not require the trustee to file a return as the "assignee" of Gould's estate because the section applies only to the assignee of the property of a corporation. Section § 6012(b)(4), however, provides:"(4) Returns of estates and trusts"Returns of an estate, a trust, or an estate of an individual under chapter 7 or 11 of title 11 of the United States Code shall be made by the fiduciary thereof."The United States argues that the trustee must file under § 6012(b)(4) as the fiduciary of Gould's Chapter 11 "estate." The debtors join the United States' argument and also contend in the alternative that the trustee must file under the section as the fiduciary of a "trust." The respondents insist that the trustee is not acting as the fiduciary of either a bankruptcy estate or a trust within the meaning of § 6012(b)(4). Accordingly, they assert, the section does not require the trustee to file a return on behalf of Gould. We agree with the debtors that the trustee must file a return because he is the fiduciary of a trust of an individual.The parties agree that Gould originally served as the fiduciary of his own bankruptcy estate when he became debtor in possession. See 11 U. S. C. § 1107(a). At confirmation, according to the United States, the bankruptcy plan substituted the trustee for Gould but did not alter the bankruptcy55estate. In other words, the United States argues, the trustee took Gould's place as the fiduciary of "an estate of an individual under chapter ... 11." The United States points out that the Bankruptcy Code explicitly provides that a fiduciary may hold and administer property of the estate after confirmation of the plan, see 11 U. S. C. § 1123(b)(3), and that nothing prohibits the substitution of a third-party trustee for the debtor in possession. The United States, therefore, maintains that the trustee must file a return under § 6012(b)(4).Whether or not the Bankruptcy Code permits a plan to place a new fiduciary in charge of an estate after confirmation, as the United States contends, we do not believe that a mere substitution occurred in this case. The plan, as quoted above, "declared and established" the new Miami Center Liquidating Trust. It then vested all of the assets of Gould's estate to respondent Smith as trustee. The plan did not simply substitute the trustee for Gould as the fiduciary of the estate. Rather, it created a separate and distinct trust holding the property of the estate and gave the trustee control of this property. The Bankruptcy Code expressly permits this arrangement. See § 1123(a)(5)(B) (authorizing a plan to transfer "all or any part of the property of the estate to one or more entities, whether organized before or after the confirmation of such plan"). The trustee, therefore, is not acting as the fiduciary of Gould's bankruptcy estate.The trustee, nonetheless, must make a return. Section 6012(b)(4), as the debtors assert, applies to the fiduciary of a trust as well as the fiduciary of a bankruptcy estate. We see no way for the respondents to deny that the Miami Center Liquidating Trust is a "trust" and that respondent Smith is its "fiduciary." A Treasury Regulation states:"Certain organizations which are commonly known as liquidating trusts are treated as trusts for purposes of the Internal Revenue Code. An organization will be considered a liquidating trust if it is organized for the56primary purpose of liquidating and distributing the assets transferred to it, and if its activities are all reasonably necessary to, and consistent with, the accomplishment of that purpose." 26 CFR § 301.7701-4(d) (1991).The Miami Center Liquidating Trust clearly fits this description. The plan not only describes the entity as a trust, but also created it for the express purpose of liquidating Gould's estate and distributing it to creditors.Respondent Smith, moreover, acted as the fiduciary of this trust. The Internal Revenue Code defines "fiduciary" as a "guardian, trustee, executor, administrator, receiver, conservator, or any person acting in any fiduciary capacity for any person." 26 U. S. C. § 7701(a)(6). A Treasury Regulation further specifies:"'Fiduciary' is a term which applies to persons who occupy positions of peculiar confidence toward others, such as trustees, executors, and administrators. A fiduciary is a person who holds in trust an estate to which another has the beneficial title or in which another has a beneficial interest, or receives and controls income of another, as in the case of receivers." 26 CFR §301.7701-6 (1991).The bankruptcy plan, as noted above, assigned the property of Gould's estate to the trustee and gave him powers consistent with this definition. Smith therefore acted as the fiduciary of a trust within the meaning of § 6012(b)(4).The respondents raise two principal objections to this conclusion. First, they argue that Gould must pay the Miami Center Liquidating Trust's income taxes under the so-called "grantor trust" rules in the Internal Revenue Code. See 26 U. S. C. §§ 671-677. They note, in particular, that Treasury Regulation § 1.677(a)-1(d) specifies that "a grantor is, in general, treated as the owner of a portion of a trust whose in-57come is ... applied in discharge of a legal obligation of the grantor." 26 CFR § 1.667(a)-1(d) (1991). They assert that Gould is the grantor of the liquidating trust and that, under this regulation, he owns the trust's income and must pay taxes on it. To support this position, the respondents cite In re Sonner, 53 B. R. 859 (ED Va. 1985), which applied the grantor trust provisions to a postconfirmation liquidating trust.While we express no opinion on the results in Sonner, the facts are distinguishable. In Sonner, the property of the bankruptcy estate by the terms of the plan appears to have revested in the debtor upon confirmation. The debtor pursuant to a plan then placed some of this property in a trust created to pay his creditors. Under these circumstances, the Bankruptcy Court concluded, the debtor had created a grantor trust under Treasury Regulation § 1.677(a)-1(d). See Sonner, supra, at 860, 864. In this case, however, the property of Gould's bankruptcy estate did not revest in Gould. The plan, instead, placed all of the estate's property directly in the Miami Center Liquidating Trust. Gould himself did not contribute anything to the trust, and we thus fail to see how the respondents can characterize him as the grantor.Second, the respondents argue that the trustee did not act as a fiduciary because he had almost no discretion in performing his duties under the plan. They assert that the trustee merely acted as a "disbursing agent" who distributed liquidated funds to the creditors. As the dissenting judge noted below, labels and characterizations cannot alter the trustee's status for the purpose of the tax law. 911 F. 2d, at 1547. Because the liquidating trust is a trust under the Internal Revenue Code and because respondent Smith's duties under the plan satisfy the description of a fiduciary in58the regulations, the restrictions on the trustee's discretion do not remove him from coverage under § 6012(b)( 4). *CThe respondents finally assert that the trustee may ignore the duties imposed by §§ 6012 and 6151 because the Chapter 11 plan does not require him to pay taxes. They note that § 1141(a) of the Bankruptcy Code states that "the provisions of a confirmed plan bind ... any creditor" whether or not the creditor has accepted the plan. They conclude that § 1141(a) precludes the United States, as a creditor, from seeking payment of any taxes. They add that the United States should have objected to the plan if it had wanted a different result. We disagree.The United States is not seeking from the trustee any taxes that became due prior to his appointment. See Reply Brief for United States 13, n. 16. It simply asserts that the trustee, after his appointment, must make tax returns under § 6012(b) in the same manner as the assignee of the property of any corporation or the trustee of any trust. No tax liability becomes due under § 6151 until the time required for making those returns. See Hartman v. Lauchli, 238 F.2d 881, 887 (CA8 1956); Pan American Van Lines v. United States, 607 F.2d 1299, 1301 (CA9 1979). Even if § 1141(a) binds creditors of the corporate and individual debtors with respect to claims that arose before confirmation, we do not see how it can bind the United States or any other creditor with respect to postconfirmation claims. Cf. 11 U. S. C. § 101(10)*The respondents also argue that the trustee does not have to pay taxes because the petitioners conceded in the Bankruptcy Court that "the trust is not a separate taxable entity." 85 B. R. 898, 900 (SD Fla. 1988). This "concession" cannot help the respondents. The petitioners asserted that the trust was not a separate taxable entity when they argued that the plan did not create a new trust but instead simply substituted the trustee for Gould as the fiduciary of the bankruptcy estate. If the respondents accept this position, which we reject above, then they would have to agree that respondent Smith has to make a return as the fiduciary of an estate.59(1988 ed., Supp. II) (defining "creditor" as used in § 1141(a) as an entity with various kinds of preconfirmation claims). For these reasons, the judgment of the Court of Appeals isReversed

OCTOBER TERM, 1991SyllabusHOLYWELL CORP. ET AL. v. SMITH ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUITNo.90-1361. Argued December 4, 1991-Decided February 25,1992*Petitioner debtors, four affiliated corporate entities and Theodore B.Gould, filed Chapter 11 bankruptcy petitions after one of the entities defaulted on a real estate loan. The Bankruptcy Court consolidated the cases and the debtors represented their own bankruptcy estates as debtors in possession. Creditors approved a Chapter 11 plan that provided, inter alia, for placement of the debtors' property into a trust and appointment of a trustee to liquidate all of the trust property and to distribute it to the creditors of the various bankruptcy estates. The plan said nothing about whether the trustee had to file income tax returns or pay any income tax due, but the United States did not object to the plan's confirmation. The plan took effect in October 1985. One of the corporate debtors filed a tax return for the fiscal year ending July 31, 1985, including as income capital gains earned in the postbankruptcy sale of certain properties in its estate, but requested respondent Smith, the appointed trustee, to pay the taxes owed. Neither the corporate debtors nor Smith filed income tax returns for succeeding fiscal years, in which there was capital gains and interest income. Over the objections of the United States and the debtors, the Bankruptcy Court granted Smith's request for a declaratory judgment that he had no duty under the Internal Revenue Code (Code) to file income tax returns or pay income taxes. Both the District Court and the Court of Appeals affirmed.Held: Smith is required by the Code to file income tax returns and pay taxes on the income attributable to the property of both the corporate debtors and Gould. Pp. 52-59.(a) Smith is an "assignee" of "all" or "substantially all" of the "property ... of a corporation" and therefore is required by § 6012(b)(3) of the Code to file returns that the corporate debtors would have filed had their property not been assigned to him. The plan transferred the corporate debtors' estates to Smith as trustee, and it is undisputed that he meets the usual definition of the word "assignee" in both ordinary and legal usage. Nothing in § 6012(b)(3) limits the definition of an "as-*Together with No. 90-1484, United States v. Smith et al., also on certiorari to the same court.48Syllabussignee" to persons who wind up a dissolving corporation or manage the day-to-day business of a distressed corporation. Pp. 52-54.(b) With respect to the income attributable to Gould's property, Smith is required by § 6012(b)(4) to make a return not, as the United States argues, because he is the "fiduciary" of the "estate ... of an individual," but because he is the "fiduciary" of a "trust." Since the plan declared and established a separate and distinct trust and vested the property of Gould's estate in Smith, it did not simply substitute Smith for Gould as the fiduciary of Gould's "estate." However, the trust here-which the plan described as a trust and created for the express purpose of liquidating Gould's estate and distributing it to creditors-clearly fits the description of a liquidating trust in 26 CFR §301.7701-4(d). Moreover, when the plan assigned the property of Gould's estate to Smith, it gave him powers consistent with the definition of "fiduciary" in § 7701 (a)(6) of the Code and 26 CFR §301.7701-6. Respondents' argument that it is Gould who must pay the trust's taxes under the Code's "grantor trust" rules is rejected. In re Sonner, 53 B. R. 859, distinguished. Also rejected is their contention that Smith lacked sufficient discretion in performing his duties under the plan to be a fiduciary, since the liquidating trust is a trust under the Code and Smith's duties satisfy the regulations' description of a fiduciary. Pp. 54-58.(c) Respondents also err in asserting that Smith may ignore the duties imposed by the Code because the plan does not require him to pay taxes. Section 1141(a) of the Bankruptcy Code-which states that "the provisions of a confirmed plan bind ... any creditor" -does not preclude the United States from seeking payment of any taxes. Even if § 1141(a) binds creditors with respect to claims that arose before confirmation, it does not bind them with regard to postconfirmation claims. Cf. 11 U. S. C. § 101(10). Here, the United States is not seeking taxes due prior to Smith's appointment, but is merely asserting that Smith, after his appointment, must make tax returns in the same manner as the assignee of the property of any corporation or the trustee of any trust. Pp.58-59.911 F.2d 1539, reversed.THOMAS, J., delivered the opinion for a unanimous Court.Kent L. Jones argued the cause for the United States in No. 90-1484 and petitioners in No. 90-1361. With him on the briefs for the United States were Solicitor General Starr, Assistant Attorney General Peterson, Deputy Solicitor General Wallace, Gary D. Gray, and Francis M. Allegra.49Full Text of Opinion

1984_83-1334

JUSTICE BRENNAN delivered the opinion of the Court.Schmerber v. California, 384 U. S. 757 (1966), held, inter alia, that a State may, over the suspect's protest, have a physician extract blood from a person suspected of drunken driving without violation of the suspect's right secured by the Fourth Amendment not to be subjected to unreasonable searches and seizures. However, Schmerber cautioned:"That we today hold that the Constitution does not forbid the States['] minor intrusions into an individual's body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions."Id. at 384 U. S. 772. In this case, the Commonwealth of Virginia seeks to compel the respondent Rudolph Lee, who is suspected of attempting to commit armed robbery, to undergo a surgical procedure under a general anesthetic for removal of a bullet lodged in his chest. Petitioners allege that the bullet will provide evidence of respondent's guilt or innocence. We conclude that the procedure sought here is an example of the "more substantial intrusion" cautioned against in Schmerber, and hold that to permit the procedure would violate respondent's right to be secure in his person guaranteed by the Fourth Amendment.IAAt approximately 1 a. m. on July 18, 1982, Ralph E. Watkinson was closing his shop for the night. As he was locking the door, he observed someone armed with a gun coming toward him from across the street. Watkinson was also armed, and when he drew his gun, the other person told him to freeze. Watkinson then fired at the other person, who returned his fire. Watkinson was hit in the legs, while the other individual, who appeared to be wounded in his left side, ran from the scene. The police arrived on the scene shortly thereafter, and Watkinson was taken by ambulance Page 470 U. S. 756 to the emergency room of the Medical College of Virginia (MCV) Hospital.Approximately 20 minutes later, police officers responding to another call found respondent eight blocks from where the earlier shooting occurred. Respondent was suffering from a gunshot wound to his left chest area, and told the police that he had been shot when two individuals attempted to rob him. An ambulance took respondent to the MCV Hospital. Watkinson was still in the MCV emergency room and, when respondent entered that room, said "[t]hat's the man that shot me." App. 14. After an investigation, the police decided that respondent's story of having been himself the victim of a robbery was untrue, and charged respondent with attempted robbery, malicious wounding, and two counts of using a firearm in the commission of a felony.BThe Commonwealth shortly thereafter moved in state court for an order directing respondent to undergo surgery to remove an object thought to be a bullet lodged under his left collarbone. The court conducted several evidentiary hearings on the motion. At the first hearing, the Commonwealth's expert testified that the surgical procedure would take 45 minutes and would involve a three to four percent chance of temporary nerve damage, a one percent chance of permanent nerve damage, and a one-tenth of one percent chance of death. At the second hearing, the expert testified that, on reexamination of respondent, he discovered that the bullet was not "back inside close to the nerves and arteries," id. at 52, as he originally had thought. Instead, he now believed the bullet to be located "just beneath the skin." Id. at 57. He testified that the surgery would require an incision of only one and one-half centimeters (slightly more than one-half inch), could be performed under local anesthesia, and would result in "no danger on the basis that there's no general anesthesia employed." Id. at 51. Page 470 U. S. 757The state trial judge granted the motion to compel surgery. Respondent petitioned the Virginia Supreme Court for a writ of prohibition and/or a writ of habeas corpus, both of which were denied. Respondent then brought an action in the United States District Court for the Eastern District of Virginia to enjoin the pending operation on Fourth Amendment grounds. The court refused to issue a preliminary injunction, holding that respondent's cause had little likelihood of success on the merits. 551 F. Supp. 247, 247-253 (1982). [Footnote 1]On October 18, 1982, just before the surgery was scheduled, the surgeon ordered that X-rays be taken of respondent's chest. The X-rays revealed that the bullet was in fact lodged two and one-half to three centimeters (approximately one inch) deep in muscular tissue in respondent's chest, substantially deeper than had been thought when the state court granted the motion to compel surgery. The surgeon now believed that a general anesthetic would be desirable for medical reasons.Respondent moved the state trial court for a rehearing based on the new evidence. After holding an evidentiary hearing, the state trial court denied the rehearing, and the Virginia Supreme Court affirmed. Respondent then returned to federal court, where he moved to alter or amend the judgment previously entered against him. After an evidentiary hearing, the District Court enjoined the threatened surgery. 551 F. Supp. at 253-261 (supplemental opinion). [Footnote 2] Page 470 U. S. 758 A divided panel of the Court of Appeals for the Fourth Circuit affirmed. 717 F.2d 888 (1983). [Footnote 3] We granted certiorari, 466 U.S. 942 (1984), to consider whether a State may, consistently with the Fourth Amendment, compel a suspect to undergo surgery of this kind in a search for evidence of a crime.IIThe Fourth Amendment protects "expectations of privacy," see Katz v. United States, 389 U. S. 347 (1967) --the individual's legitimate expectations that, in certain places and at certain times, he has "the right to be let alone -- the most comprehensive of rights and the right most valued by civilized men." Olmstead v. United States, 277 U. S. 438, Page 470 U. S. 759 277 U. S. 478 (1928) (Brandeis, J., dissenting). Putting to one side the procedural protections of the warrant requirement, the Fourth Amendment generally protects the "security" of "persons, houses, papers, and effects" against official intrusions up to the point where the community's need for evidence surmounts a specified standard, ordinarily "probable cause." Beyond this point, it is ordinarily justifiable for the community to demand that the individual give up some part of his interest in privacy and security to advance the community's vital interests in law enforcement; such a search is generally "reasonable" in the Amendment's terms.A compelled surgical intrusion into an individual's body for evidence, however, implicates expectations of privacy and security of such magnitude that the intrusion may be "unreasonable" even if likely to produce evidence of a crime. In Schmerber v. California, 384 U. S. 757 (1966), we addressed a claim that the State had breached the Fourth Amendment's protection of the "right of the people to be secure in their persons . . . against unreasonable searches and seizures" (emphasis added) when it compelled an individual suspected of drunken driving to undergo a blood test. Schmerber had been arrested at a hospital while receiving treatment for injuries suffered when the automobile he was driving struck a tree. Id. at 384 U. S. 758. Despite Schmerber's objection, a police officer at the hospital had directed a physician to take a blood sample from him. Schmerber subsequently objected to the introduction at trial of evidence obtained as a result of the blood test.The authorities in Schmerber clearly had probable cause to believe that he had been driving while intoxicated, id. at 384 U. S. 768, and to believe that a blood test would provide evidence that was exceptionally probative in confirming this belief. Id. at 384 U. S. 770. Because the case fell within the exigent circumstances exception to the warrant requirement, no warrant was necessary. Ibid. The search was not more intrusive than reasonably necessary to accomplish its goals. Nonetheless, Page 470 U. S. 760 Schmerber argued that the Fourth Amendment prohibited the authorities from intruding into his body to extract the blood that was needed as evidence.Schmerber noted that"[t]he overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State."Id. at 384 U. S. 767. Citing Wolf v. Colorado, 338 U. S. 25, 338 U. S. 27 (1949), and Mapp v. Ohio, 367 U. S. 643 (1961), we observed that these values were "basic to a free society." We also noted that,"[b]ecause we are dealing with intrusions into the human body, rather than with state interferences with property relationships or private papers -- 'houses, papers, and effects' -- we write on a clean slate."384 U.S. at 384 U. S. 767-768. The intrusion perhaps implicated Schmerber's most personal and deep-rooted expectations of privacy, and the Court recognized that Fourth Amendment analysis thus required a discerning inquiry into the facts and circumstances to determine whether the intrusion was justifiable. The Fourth Amendment neither forbids nor permits all such intrusions; rather, the Amendment's"proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner."Id. at 384 U. S. 768.The reasonableness of surgical intrusions beneath the skin depends on a case-by-case approach, in which the individual's interests in privacy and security are weighed against society's interests in conducting the procedure. In a given case, the question whether the community's need for evidence outweighs the substantial privacy interests at stake is a delicate one admitting of few categorical answers. We believe that Schmerber, however, provides the appropriate framework of analysis for such cases.Schmerber recognized that the ordinary requirements of the Fourth Amendment would be the threshold requirements for conducting this kind of surgical search and seizure. We noted the importance of probable cause. Id. at 384 U. S. 768-769. Page 470 U. S. 761 And we pointed out:"Search warrants are ordinarily required for searches of dwellings, and, absent an emergency, no less could be required where intrusions into the human body are concerned. . . . The importance of informed, detached and deliberate determinations of the issue whether or not to invade another's body in search of evidence of guilt is indisputable and great."Id. at 384 U. S. 770.Beyond these standards, Schmerber's inquiry considered a number of other factors in determining the "reasonableness" of the blood test. A crucial factor in analyzing the magnitude of the intrusion in Schmerber is the extent to which the procedure may threaten the safety or health of the individual. "[F]or most people, [a blood test] involves virtually no risk, trauma, or pain." Id. at 384 U. S. 771. Moreover, all reasonable medical precautions were taken, and no unusual or untested procedures were employed in Schmerber; the procedure was performed "by a physician in a hospital environment according to accepted medical practices." Ibid. Notwithstanding the existence of probable cause, a search for evidence of a crime may be unjustifiable if it endangers the life or health of the suspect. [Footnote 4]Another factor is the extent of intrusion upon the individual's dignitary interests in personal privacy and bodily integrity. Intruding into an individual's living room, See Payton Page 470 U. S. 762 v. New York, 445 U. S. 573 (1980), eavesdropping upon an individual's telephone conversations, see Katz v. United States, 389 U.S. at 389 U. S. 361, or forcing an individual to accompany police officers to the police station, see Dunaway v. New York, 442 U. S. 200 (1979), typically do not injure the physical person of the individual. Such intrusions do, however, damage the individual's sense of personal privacy and security, and are thus subject to the Fourth Amendment's dictates. In noting that a blood test was "a commonplace in these days of periodic physical examinations," 384 U.S. at 384 U. S. 771, Schmerber recognized society's judgment that blood tests do not constitute an unduly extensive imposition on an individual's personal privacy and bodily integrity. [Footnote 5]Weighed against these individual interests is the community's interest in fairly and accurately determining guilt or innocence. This interest is of course of great importance. We noted in Schmerber that a blood test is "a highly effective means of determining the degree to which a person is under the influence of alcohol." Id. at 384 U. S. 771. Moreover, there was "a clear indication that in fact [desired] evidence [would] be found" if the blood test were undertaken. Id. at 384 U. S. 770. Page 470 U. S. 763Especially given the difficulty of proving drunkenness by other means, these considerations showed that results of the blood test were of vital importance if the State were to enforce its drunken driving laws. In Schmerber, we concluded that this state interest was sufficient to justify the intrusion, and the compelled blood test was thus "reasonable" for Fourth Amendment purposes.IIIApplying the Schmerber balancing test in this case, we believe that the Court of Appeals reached the correct result. The Commonwealth plainly had probable cause to conduct the search. In addition, all parties apparently agree that respondent has had a full measure of procedural protections, and has been able fully to litigate the difficult medical and legal questions necessarily involved in analyzing the reasonableness of a surgical incision of this magnitude. [Footnote 6] Our inquiry therefore must focus on the extent of the intrusion on respondent's privacy interests and on the State's need for the evidence.The threats to the health or safety of respondent posed by the surgery are the subject of sharp dispute between the parties. Before the new revelations of October 18, the District Court found that the procedure could be carried out "with virtually no risk to [respondent]." 551 F. Supp. at 252. On rehearing, however, with new evidence before it, the District Court held that "the risks previously involved have increased in magnitude even as new risks are being added." Id. at 260.The Court of Appeals examined the medical evidence in the record and found that respondent would suffer some risks Page 470 U. S. 764associated with the surgical procedure. [Footnote 7] One surgeon had testified that the difficulty of discovering the exact location of the bullet "could require extensive probing and retracting of the muscle tissue," carrying with it"the concomitant risks of injury to the muscle, as well as injury to the nerves, blood vessels and other tissue in the chest and pleural cavity."717 F.2d at 900. The court further noted that "the greater intrusion and the larger incisions increase the risks of infection." Ibid. Moreover, there was conflict in the testimony concerning the nature and the scope of the operation. One surgeon stated that it would take 15-20 minutes, while another predicted the procedure could take up to two and one-half hours. Ibid. The court properly took the resulting uncertainty about the medical risks into account. [Footnote 8]Both lower courts in this case believed that the proposed surgery, which for purely medical reasons required the use of a general anesthetic, [Footnote 9] would be an "extensive" intrusion on respondent's personal privacy and bodily integrity. Ibid. Page 470 U. S. 765 When conducted with the consent of the patient, surgery requiring general anesthesia is not necessarily demeaning or intrusive. In such a case, the surgeon is carrying out the patient's own will concerning the patient's body, and the patient's right to privacy is therefore preserved. In this case, however, the Court of Appeals noted that the Commonwealth proposes to take control of respondent's body, to "drug this citizen -- not yet convicted of a criminal offense -- with narcotics and barbiturates into a state of unconsciousness," id. at 901, and then to search beneath his skin for evidence of a crime. This kind of surgery involves a virtually total divestment of respondent's ordinary control over surgical probing beneath his skin.The other part of the balance concerns the Commonwealth's need to intrude into respondent's body to retrieve the bullet. The Commonwealth claims to need the bullet to demonstrate that it was fired from Watkinson's gun, which in turn would show that respondent was the robber who confronted Watkinson. However, although we recognize the difficulty of making determinations in advance as to the strength of the case against respondent, petitioners' assertions of a compelling need for the bullet are hardly persuasive. The very circumstances relied on in this case to demonstrate probable cause to believe that evidence will be found tend to vitiate the Commonwealth's need to compel respondent to undergo surgery. The Commonwealth has available substantial additional evidence that respondent was the individual who accosted Watkinson on the night of the robbery. No party in this case suggests that Watkinson's entirely spontaneous identification of respondent at the hospital would be inadmissible. In addition, petitioners can no doubt prove that Watkinson was found a few blocks from Watkinson's store shortly after the incident took place. And petitioners can certainly show that the location of the bullet (under respondent's left collarbone) seems to correlate with Watkinson's report that the robber "jerked" to the left. App. 13. The fact that the Page 470 U. S. 766 Commonwealth has available such substantial evidence of the origin of the bullet restricts the need for the Commonwealth to compel respondent to undergo the contemplated surgery. [Footnote 10]In weighing the various factors in this case, we therefore reach the same conclusion as the courts below. The operation sought will intrude substantially on respondent's protected interests. The medical risks of the operation, although apparently not extremely severe, are a subject of considerable dispute; the very uncertainty militates against finding the operation to be "reasonable." In addition, the intrusion on respondent's privacy interests entailed by the operation can only be characterized as severe. On the other hand, although the bullet may turn out to be useful to the Commonwealth in prosecuting respondent, the Commonwealth has failed to demonstrate a compelling need for it. We believe that, in these circumstances, the Commonwealth has failed to demonstrate that it would be "reasonable" under the terms of the Fourth Amendment to search for evidence of this crime by means of the contemplated surgery. Page 470 U. S. 767IVThe Fourth Amendment is a vital safeguard of the right of the citizen to be free from unreasonable governmental intrusions into any area in which he has a reasonable expectation of privacy. Where the Court has found a lesser expectation of privacy, see, e.g., Rakas v. Illinois, 439 U. S. 128 (1978); South Dakota v. Opperman, 428 U. S. 364 (1976), or where the search involves a minimal intrusion on privacy interests, see, e.g., United States v. Hensley, 469 U. S. 221 (1985); Dunaway v. New York, 442 U.S. at 442 U. S. 210-211; United States v. Brignoni-Ponce, 422 U. S. 873, 422 U. S. 880 (1975); Adams v. Williams, 407 U. S. 143 (1972); Terry v. Ohio, 392 U. S. 1 (1968), the Court has held that the Fourth Amendment's protections are correspondingly less stringent. Conversely, however, the Fourth Amendment's command that searches be "reasonable" requires that, when the State seeks to intrude upon an area in which our society recognizes a significantly heightened privacy interest, a more substantial justification is required to make the search "reasonable." Applying these principles, we hold that the proposed search in this case would be "unreasonable" under the Fourth Amendment.Affirmed

U.S. Supreme CourtWinston v. Lee, 470 U.S. 753 (1985)Winston v. LeeNo. 83-1334Argued October 31, 1984Decided March 20, 1985470 U.S. 753SyllabusA shopkeeper was wounded by gunshot during an attempted robbery but, also being armed with a gun, apparently wounded his assailant in his left side, and the assailant then ran from the scene. Shortly after the victim was taken to a hospital, police officers found respondent, who was suffering from a gunshot wound to his left chest area, eight blocks away from the shooting. He was also taken to the hospital, where the victim identified him as the assailant. After an investigation, the police charged respondent with, inter alia, attempted robbery and malicious wounding. Thereafter the Commonwealth of Virginia moved in state court for an order directing respondent to undergo surgery to remove a bullet lodged under his left collarbone, asserting that the bullet would provide evidence of respondent's guilt or innocence. On the basis of expert testimony that the surgery would require an incision of only about one-half inch, could be performed under local anesthesia, and would result in "no danger on the basis that there's no general anesthesia employed," the court granted the motion, and the Virginia Supreme Court denied respondent's petition for a writ of prohibition and/or a writ of habeas corpus. Respondent then brought an action in Federal District Court to enjoin the pending operation on Fourth Amendment grounds, but the court refused to issue a preliminary injunction. Subsequently, X rays taken just before surgery was scheduled showed that the bullet was lodged substantially deeper than had been thought when the state court granted the motion to compel surgery, and the surgeon concluded that a general anesthetic would be desirable. Respondent unsuccessfully sought a rehearing in the state trial court, and the Virginia Supreme Court affirmed. However, respondent then returned to the Federal District Court, which, after an evidentiary hearing, enjoined the threatened surgery. The Court of Appeals affirmed.Held. The proposed surgery would violate respondent's right to be secure in his person and the search would be "unreasonable" under the Fourth Amendment. Pp. 470 U. S. 758-767.(a) A compelled surgical intrusion into an individual's body for evidence implicates expectations of privacy and security of such magnitude that the intrusion may be "unreasonable" even if likely to produce evidence Page 470 U. S. 754 of a crime. The reasonableness of surgical intrusions beneath the skin depends on a case-by-case approach, in which the individual's interests in privacy and security are weighed against society's interests in conducting the procedure to obtain evidence for fairly determining guilt or innocence. The appropriate framework of analysis for such cases is provided in Schmerber v. California, 384 U. S. 757, which held that a State may, over the suspect's protest, have a physician extract blood from a person suspected of drunken driving without violating the suspect's Fourth Amendment rights. Beyond the threshold requirements as to probable cause and warrants, Schmerber's inquiry considered other factors for determining "reasonableness" -- including the extent to which the procedure may threaten the individual's safety or health, the extent of intrusion upon the individual's dignitary interests in personal privacy and bodily integrity, and the community's interest in fairly and accurately determining guilt or innocence. Pp. 470 U. S. 758-763.(b) Under the Schmerber balancing test, the lower federal courts reached the correct result here. The threats to respondent's safety posed by the surgery were the subject of sharp dispute, and there was conflict in the testimony concerning the nature and scope of the operation. Thus, the resulting uncertainty about the medical risks was properly taken into account. Moreover, the intrusion on respondent's privacy interests and bodily integrity can only be characterized as severe. Surgery without the patient's consent, performed under a general anesthetic to search for evidence of a crime, involves a virtually total divestment of the patient's ordinary control over surgical probing beneath his skin. On the other hand, the Commonwealth's assertions of compelling need to intrude into respondent's body to retrieve the bullet are not persuasive. The Commonwealth has available substantial additional evidence that respondent was the individual who accosted the victim. Pp. 470 U. S. 763-766.717 F.2d 888, affirmed.BRENNAN, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, MARSHALL, POWELL, STEVENS, and O'CONNOR, JJ., joined. BURGER, C.J., filed a concurring opinion, post, p. 470 U. S. 767. BLACKMUN and REHNQUIST, JJ., concurred in the judgment. Page 470 U. S. 755

1968_647

MR. JUSTICE DOUGLAS delivered the opinion of the Court.This suit is a class action brought by the National Democratic Party of Alabama (NDPA) and some of its officers and candidates in the 1968 general election against Alabama state officials who had refused to include various NDPA candidates on the ballot for various county and state-wide offices. As the complaint sought an injunction against enforcement of Alabama statutes on federal constitutional grounds, a three-judge federal court was impaneled. 28 U.S.C. § 2281.The District Court entered a temporary restraining order. Thereafter appellees filed their answer challenging, inter alia, the qualifications of NDPA candidates because of their failure to satisfy certain specified requirements of Alabama law. On October 11, 1968, after a hearing on the merits, the three-judge court, by a divided vote, dissolved the temporary injunction and upheld on their face and as applied all the challenged Alabama statutes.Appellants appealed to this Court (28 U.S.C. § 1253) and on October 14 we restored the District Court's temporary restraining order, saying:"The application for restoration of temporary relief is granted pending oral argument on the application, which is set for Friday, October 18, 1968, at 9:00 a.m. The case is placed on the summary calendar. "Page 394 U. S. 361And on October 10, 1968, we entered an additional order providing in part:"The order entered October 14, 1968, restoring temporary relief is continued pending action upon the jurisdictional statement which has been filed."NDPA candidates, mostly Negroes, were elected to various local offices in Etowah, Marengo, and Sumter Counties. But in Greene County the NDPA candidates for local office were left off the ballot except for absentee voters. In Greene County the only candidates appearing on the ballot were the regular Democratic Party nominees for local offices and they received between 1,699 and 1,709 votes each. It appears that NDPA candidates in Greene County would have won had they been on the ballot [Footnote 1] for 1,938 ballots were marked for the NDPA "straight ticket."On November 15, appellants filed in this Court a motion to show cause why James D. Herndon, Probate Judge, Greene County, [Footnote 2] should not be held in contempt and why the election in Greene County should not be set aside and a new one held. Later the United States moved in the District Court for relief and that court issued a rule to show cause why the results of the November election in Greene County should not be enjoined. The District Court stayed giving effect to the Greene County election.We have heard argument on the jurisdictional statement and on the motion to hold Judge Herndon in contempt. On the merits of the appeal, we reverse.First. The Alabama Corrupt Practices Act requires each candidate within five days "after the announcement Page 394 U. S. 362 of his candidacy for any office" to file a statement showing "the name of not less than one nor more than five persons" chosen to receive, expend, audit, and disburse funds for his election.Ala.Code, Tit. 17, § 274 (1958).The disqualification of the NDPA candidates for their alleged failure to satisfy this provision of the Alabama Act implicates Probate Judge Herndon, who was responsible for the preparation of the Greene County ballot which omitted their names.In this case, the black candidates for Greene County offices designated finance committees in February, 1968, prior to their entry in the Democratic primary. Appellees contend that it was sufficient to justify Judge Herndon's omission of the names that the NDPA candidates did not file a second designation of financial committee after May 7, the date of the primary, and the date on which those candidates were nominated by the NDPA. Appellants contend that disqualification for that reason constituted discriminatory enforcement of the Corrupt Practices Act in violation of the Equal Protection Clause. Since the names of the white candidates who won the May 7 primary were placed on the ballot, although they also did not file a second designation after that date, appellees clearly have the burden of justifying the denial of ballot places to the black NDPA candidates. Appellees have failed to satisfy that burden. [Footnote 3]Alabama law requires all candidates for local office, not selected in primaries, to be nominated by mass meeting on the first Tuesday in May of the election year. Ala.Code, Tit. 17, §§ 413, 414 (1958). The certificate of nomination sent to Judge Herndon, probate judge for Page 394 U. S. 363 Greene County, on September 4, stated that NDPA nominees had been selected pursuant to a mass meeting.On September 18, the District Court temporarily restrained the omission from the ballot of NDPA candidates for state and local office. That restraint was dissolved on October 11. Meanwhile, counsel for the white Greene County candidates, who was the county solicitor, prompted Judge Herndon to file an affidavit in which he stated that, to the "best of [his] knowledge and belief," the NDPA held no local mass meeting on May 7 at which nominations were made, and further that none of the six NDPA candidates "filed or offered to file in [his] office" the designation of financial committee required by the Corrupt Practices Act. Yet, when his deposition was taken on December 27, the judge conceded that the mass meeting might have been held without his hearing about, it and admitted knowledge that the black candidates had filed designations of financial committee in February. He did not say why, in these circumstances, the February filing did not suffice for the general election; the designations refer to candidacies for the general election as well as the primary election. [Footnote 4] Nor did he offer any explanation why, if the February filings by the white Page 394 U. S. 364 candidates sufficed for the general election, the filings of the black candidates should be treated differently. The record is therefore utterly devoid of any explanation adequate to satisfy appellees' burden. It is true that, at oral argument in this Court counsel for appellees suggested that the Alabama courts might construe the statutory words --"[w]ithin five days after the announcement of his candidacy . . . each candidate for a county office . . . shall file [the designation statement] with the judge of probate"-- to require a second filing by losers in a primary who stand at the general election as candidates of another party. But it was not urged, nor could it be on this record, that appellees' distinction between the black and white candidates was rested on that construction.We deal here with Fifteenth Amendment rights which guarantee the right of people regardless of their race, color, or previous condition of servitude to cast their votes effectively and with First Amendment rights which include the right to band together for the advancement of political beliefs. Williams v. Rhodes, 393 U. S. 23. While the regulation of corrupt practices in state and federal elections is an important governmental function, we refuse to accept a reading of an Act which gives such a loose meaning to words and such discretionary authority to election officials as to cause Fifteenth and First Amendment rights to be subject to disparate treatment. That risk is compounded here where the penalty is the irrevocable striking of candidates from the ballot without notice or an opportunity for contest and correction.When the Alabama Act is construed as appellants' opponents were allowed to construe it without suffering disqualification, we conclude that appellants met the same requirements. Unequal application of the same law to different racial groups has an especially invidious connotation. Page 394 U. S. 365Second. In 1967, Alabama passed the Garrett Act (L.1967, Act 243) barring from the ballot in a general election a candidate for a state, district, or federal office"who does not file a declaration of intention to become a candidate for such office with the secretary of state on or before the first day of March of the year in which such general election is held."The Garrett Act also requires a declaration of the political party whose nomination the candidate seeks; or if he is not a party candidate that he will run as an independent. A like provision bars probate judges from printing on ballots the names of candidates for county offices unless they have filed a declaration of intention on or before the prior March 1. Accordingly, appellees justify their disqualification of NDPA candidates in Etowah, Marengo, and Sumter Counties, and Judge Herndon justifies his omission of those candidates from the Greene County ballot, on the ground that they did not comply with the Garrett Act.Prior to the Garrett Act, every candidate desiring to run in a primary was required to file a declaration of candidacy by March 1. Ala.Code, Tit. 17, § 348 (1958). Independents were exempt from this requirement, and they were able to get on the ballot after nomination by a mass meeting held on the first Tuesday in May. Id. §§ 413, 414. As a result of the Garrett Act, an independent candidate had to decide whether to run at the same time as candidates in the primary made their determination.The question is whether the Garrett Act is affected by § 5 of the Voting Rights Act of 1965, 79 Stat. 439, 42 U.S.C. § 1973c (1964 ed., Supp. III), which provides that, whenever States like Alabama seek to administer"any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that, in force or effect on November 1, 1964,"the Page 394 U. S. 366 State may institute an action in the United States District Court for the District of Columbia for a declaratory judgment that"such qualification, prerequisite, standard, practice, or procedure 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."It is further provided in § 5 that, unless and until the District of Columbia court enters such judgment"no person shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or procedure. [Footnote 5]"The Garrett Act is in respects material here on all fours with Whitley v. Williams, 393 U. S. 544, in which we held that a like provision added to the Mississippi Code could not be applied until it had been approved in one of the two ways provided in § 5 of the Voting Rights Act of 1965.In the Whitley case, we dealt with a new Mississippi law which, inter alia, changed the time for filing a petition as an independent candidate from 40 days before the general election to 60 days before the primary election.We held that this new provision was subject to § 5 of the Voting Rights Act of 1965 as it was aimed "at increasing the difficulty for an independent candidate to gain a position on the general election ballot." Id. at 393 U. S. 570. And we added that that change "might also undermine the effectiveness of voters who wish to elect independent candidates." Ibid. The increased barriers placed on independent candidates by Alabama's Garrett Act likewise bring it within the purview of § 5 of the Federal Act. The Alabama officials, therefore, acted unlawfully in disqualifying independent candidates in the 1968 election for failure to comply with the Garrett Act. Page 394 U. S. 367On the merits, we reverse the District Court and remand the cause with directions (1) to issue an appropriate order requiring the prevailing NDPA candidates in Etowah, Marengo, and Sumter Counties to be treated as duly elected to the offices for which they ran, and (2) to require the state and local officials promptly to conduct a new election in Greene County for the various county offices contested by NDPA candidates, [Footnote 6] at which election the NDPA candidates for those respective positions shall appear on the ballot.The motion to hold Judge Herndon in contempt will be disposed of in a separate opinion.It is so ordered

U.S. Supreme CourtHadnott v. Amos, 394 U.S. 358 (1969)Hadnott v. AmosNo. 647Argued January 21, 1969Decided March 25, 1969394 U.S. 358SyllabusAppellants, the National Democratic Party of Alabama (NDPA) and some of its officers and candidates (mostly Negroes) in the November, 1968, general election, brought suit against respondents, state officials, seeking to enjoin enforcement of certain Alabama election laws which appellants claimed were unconstitutional on their face and had been discriminatorily used by appellees to keep various NDPA candidates from being on the ballot in that election. These laws included (1) Ala.Code, Tit. 17, § 274 (1958), which required a candidate within five days after the announcement of his candidacy to file a statement designating his finance committee and (2) the "Garrett Act" of 1967, which required independent candidates, who, prior to that law, could file declarations of intent after nomination by mass meeting in May, to do so by March 1, when primary candidates had to file. A three-judge District Court entered a temporary restraining order enjoining the appropriate Alabama officials from using ballots at the 1968 general election which did not include the names of the NDPA candidates. Appellees' answer challenged the qualifications of those candidates for failure to comply with the Alabama laws. After a hearing, the District Court dissolved the temporary injunction and upheld the Alabama statutes on their face and as applied. This Court, on appellants' application and after oral argument, ordered the District Court's temporary restraining order continued pending action on the jurisdictional statement. The NDPA candidates were elected to various offices in Etowah, Marengo, and Sumter Counties, and apparently would have been elected in Greene County had their names appeared on the ballot. There, Probate Judge Herndon, who was responsible for preparing the ballot, omitted the names of the NDPA candidates on the ground that they had not filed a second § 274 designation after the Democratic primary of May 7, 1968, in which they had been candidates (although the successful white candidates filed no second designation after that date), and that, "to the best of his knowledge and belief," the NDPA had held no mass meeting to choose candidates for the general election on that date, as they claimed to have done (in Page 394 U. S. 359 accordance with an Alabama law that local candidates not selected in primaries be nominated by mass meeting the first Tuesday in ay of the election year). Herndon later admitted knowing that the NDPA candidates had made the § 274 designation in February, 1968, before they entered the primary, and that the NDPA mass meeting might have been held without his having known about it. After the election, appellants filed in this Court a motion to show cause why Judge Herndon should not be held in contempt and why the Greene County election should not be set aside and a new election held. The District Court (in response to a motion by the United States) issued a rule to show cause why the Greene County election should not be enjoined, and the court stayed giving effect to that election.Held:1. The disqualification in the 1968 election of the NDPA candidates on the ground that they failed to meet requirements under the Alabama Corrupt Practices Act which their opponents did not have to meet constituted, on the record here, an unequal application of the law in violation of the Equal Protection Clause of the Fourteenth Amendment. Pp. 394 U. S. 361-364.2. Disqualification of the NDPA candidates for failure to comply with the Garrett Act was unlawful since that Act, which imposed increased barriers on independent candidates, was inoperative because the Alabama officials had failed to meet the approval requirements of § 5 of the Voting Rights Act of 1965. Whitley v. Williams, 393 U. S. 544. Pp. 394 U. S. 365-366.3. The case is remanded to the District Court with directions (1) to order the prevailing NDPA candidates in Etowah, Marengo, and Sumter Counties to be treated as elected and (2) to require the officials to hold a new election in Greene County for the offices contested by NDPA candidates, whose names shall appear on the ballots. P. 394 U. S. 367.295 F. Supp. 1003, reversed and remanded. [NOTE: For Court's action on motion to show cause why Judge Herndon should not be held in contempt, see post, p. 394 U. S. 399.] Page 394 U. S. 360